HomeMy WebLinkAboutGregoire Peddle 06-03-2006
fJfEC . ~VIED
IN THE MATTER OF AN ARBITRATION MAR 2 fJ 2U05
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BETWEEN:
MANAGEMENT AND TRAINING CORPORATION OF CANADA
Operating as Central North Correctional Centre (CNCC)
("MTC" or the "Employer")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
AND IN THE MATTER OF THE GRIEVANCES OF
DANIEL GREGOIRE and JERRY PEDDLE
AWARD
ARBITRATOR: Paula Knopf
APPEARANCES:
For the Employer Ben Ratelband, Counsel
Sarah Armstrong, Counsel
For the Union Boris Bohuslawsky, Counsel
Hearings in this matter were held in Midland and Orillia, Ontario on November 10,
2004, January 4, March 3 & 21, April 1 & 21, May 9, 18 & 31, September 6, 7 &
14, December 14 & 19, 2005, January 10 and February 2 & 3, 2006.
This case concerns two Corrections Officers who were terminated
after the Employer concluded that they had fallen asleep during the escort of an
inmate at a community hospital. The grievors deny any wrongdoing. The Union
asserts that the Employer's investigation was flawed and that discharges are
unjust. The Union also maintains that one of the grievors was terminated
because of or in retaliation for his work as an active Union and Occupational
Health and Safety advocate. The grievance also includes a claim for damages for
defamation arising out of the investigation and the discharge. The case involved
15 days of evidence, as well as two days of formal argument. However, for all the
reasons that fallow, it has been determined that the discharge must be upheld.
The Employer, the Management and Training Corporation of
Canada (MTC), operates the Central North Correctional Centre (CNCC), which is
known as a "super jail" in Midland, Ontario. This is a maximum security facility,
housing 1,200 inmates who have been convicted of serious criminal offences.
MTC's operational mandate is based on a "Services Agreement" signed with the
Crown in Right of Ontario, as represented by the Ministry of Corrections
Services. The Agreement sets forth the expectations and conditions that MTC
must fulfill, including the maintenance of security. The Ministry maintains a
"Contract Compliance" function through an oversight role with the facility. Failure
to comply with the contract can result in significant monetary damages.
At all material times, the grievors were Corrections Officers. Their
primary responsibilities include ensuring the safety and secùrity of inmates, the
public and cO-workers. CNCC is a relatively new facility. As a result both grievors
have approximately two and one-half years' seniority. Neither has any record of
discipline or any complaints about their work prior to this incident. On the
contrary, their records were both very positive.
The critical events Occurred on May 1, 2004. There is no dispute
about the background facts. An inmate (who will be referred to in these
proceedings simply as "Inmate A") required medical attention beyond what was
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available within the facility itself. The two grievors were assigned to "escort duty",
which involves taking the inmate to the hospital, remaining with him at the
hospital, and escorting him back to the facility if no overnight admission is
required.
Corrections Officers are given specialized training on escort
responsibilities. There is no claim that their training has been inadequate.
Excerpts from their training sessions demonstrate the emphasis on maintaining
attentiveness and safety:
The key to officer safety ís AWARENESS
THE THREE TYPES OF PEOPLE:
. Those who make things happen
. Those who like to think they make things happen
. Those who say, "What the heck happened!"
TIPS ON IMPROVING YOUR OWN AWARENESS
. MENTAL READINESS - Are you focused on your
responsibilities and the task at hand?
. PREPARATION - Do you have all the information to
conduct the escort?
. TACTICAL THINKING - improves your confidence and
safety
. TACTICAL COMMUNICATION - helps to diffuse a
situation and prevent escalation
. PHYSICAL CONTROL TECHNIQUES - when the use of
intermediate weapons is not required or inappropriate
. ATTITUDE - the most essential component. Project a
professional and confident demeanor.
. PRACTICE - Development of confidence, retention, and
minimize stress reaction through role-play scenarios.
Training also stresses that Corrections Officers' responsibilities are to be alert to
potential problems, prevent conflict, prevent escalations of conflict, and to ensure
the safety of co-workers, the public and the offender.
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Their applicable "Standing Orders" include specific directions for escorts to
community health care facilities. The following items are relevant:
b) escorts will maintain a detailed account of
escort activities in a logbook including the
identity of anyone coming into contact with the
inmate, any telephone calls placed on behalf of
the inmate and any other relevant information;
. . .
f) escorts must endeavour to position themselves
where they can maintain constant observation
of the inmate and control any exits;
Escorts to the community hospital are done in pairs. At the commencement of
every escort, each Corrections Officer is issued his/her custom-fitted Kevlar
(bullet-proof) vest, a canister of pepper spray and an ASP baton for protection
and security. In addition, the inmate is secured with a set of handcuffs and leg
shackles. The leg shackles link each ankle with an 18-inch chain that allows for
limited mobility. The Corrections Officers are also given a "client profile" that sets
out that inmate's record of convictions, sentences and any other pertinent
information.
The inmate being escorted on May 1, 2004 had a long series of
convictions for offences, which include theft, assault causing bodily harm, kidnap
with intent of forcible confinement, fraud and being "unlawfully at large". As of
May 1, 2004, Inmate A had only a few weeks left in his sentence before his
scheduled release from custody. All this was reflected on his profile.
The grievors were both experienced in escort duty and had often
worked together in the past. Prior to leaving the facility on May 151, they met with
Inmate A, secured him with the handcuffs and leg shackles, and spoke to him
about the rules and expectations of behaviour during the escort. Thegrievor,
Daniel Gregoire, asked Inmate A whether they could expect any difficulties from
him that day. Inmate A answered, "No, boss; I've only got three weeks left on my
time here, and I just want to go home." The grievors then rode with Inmate A
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during the short and uneventful trip by van to the nearby Huronia District Hospital
(the "Hospital").
CNCC and the Hospital have worked together to establish protocols
concerning inmate escorts. These were arranged through extensive discussions
to ensure that Hospital personnel and patients could remain confident of safety
and CNCC could access necessary medical assistance for the inmates. One of
the protocols that had been developed was that inmates arriving at Emergency
would be taken immediately to a small examination room off-set from the public
waiting areas. This is done to avoid the unpleasantness of having two armed
and uniformed Corrections Officers sitting in Kevlar vests with a shackled inmate,
dressed in prison garb, in the same waiting room with other patients also awaiting
medical attention. Accordingly, when the grievors arrived with Inmate A at the
Emergency Wing of the Hospital, an admitting nurse took them directly to a small
room to await medical attention. This room is known as the "eye examination"
room. It has one door and is removed from the area of the general waiting room.
It is approximately 30 feet away from the nursing station, with some equipment
and a desk in between. The "eye" room is situated nearby another larger room
that is used for emergency procedures. That room contains drugs and surgical
equipment. The eye examination room itself contains a "dentist style" reclining
chair, in which the inmate was placed, facing opposite to the door. There is a
straight-back "kitchen-style" chair immediately to the left of the door as one
enters the room. The grievor, Daniel Gregoire, sat in that chair. Immediately to
the right of the door is a table holding an eye examination machine. Behind that
is a wheeled stool, on which the grievor, Jerry Peddle, sat. Officer Peddle placed
himself either against the wall opposite to Officer Gregoire or at the eye machine
itself. This is a small room. Given the reclining chair, the eye examination
machine, the chair and the stool, remaining floor space only allows for movement
to each piece of furniture. Part of these proceedings included a viewing of the
Emergency Department and the eye room. This viewing was of great benefit as
the evidence was received.
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It is agreed that Inmate A and the two grievors sat in the eye
examination room for approximately 1 Y:z - 2 hours awaiting medical attention. For
the first part of this wait the door to the room was opened. At some point during
this period, some nurses became concerned that the two Corrections Officers
appeared to have fallen asleep. This was reported to their supervisor who asked
Hospital security to investigate. Two security guards did look into the matter for
the nurses. Suffice to say at this point in the narrative that immediately thereafter
the Corrections Officers no longer appeared to be asleep, Inmate A ultimately
received the required medical attention, and the Hospital visit and escort
concluded without difficulties. Quite possibly that could have been the end of the
matter.
However, on May 4, CNCC's Health Care Coordinator, Fred
Sisulak, received,an email from the Hospital stating the following concern:
On Saturday May 1 st two CNCC staff members were
guarding a client from your facility at our ENT [eye]
room at HDH [the Hospital]. At approximately 1430 it
was witnessed by the ER staff that two CNCC staff
members were sleeping. Our security was notified,
and they awakened the CNCC staff.
This e-mail was forwarded to CNCC management. Lieutenant Doug Houghton
was assigned to investigate the allegations. He has considerable experience in
secured facilities and had been in charge of investigations at CNCC for
approximately two years. He has received some specialized training in internal
investigations and report writing. The initial step was to investigate the question
of whether CNCC staff was actually involved or if they could have been confused
with other protection officers from the community. A check of records, schedules
and duty rosters confirmed that the Hospital's complaint did relate to a CNCC
escort and identified the two grievors as being the ones on duty at the relevant
time. Lieutenant Houghton's investigative role then became one of gathering all
the available information and compiling a Report that would outline the
allegations, the relevant documentation, summaries of interviews, identification of
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relevant policies, rules and potential infractions, and any recommendations for
action. He testified that he made entries and additions to his Report as the
investigation progressed.
Lieutenant Houghton asked Officers Gregoire and Peddle to fill out
"Occurrence Report" forms that are used by CNCC and the Ministry to note any
"incidents" during an escort. The grievors were not told the reason why the
Occurrence Reports were being requested, nor were they told that an
investigation was underway because allegations had been made against them.
They filled out these forms on the day that they were requested. On May 7,
Officer Gregoire wrote, "I do not recall the inmate we escorted or why he was
taken to HDH. To my recollection, the escort was routine and uneventfuL" On
May 11, Officer Peddle wrote, "I don't remember anything unusual or out of the
ordinary during any recent escorts."
On May 12 and 13, 2004, Lieutenant Houghton advised the
grievors, in writing, that an investigation had been launched "into an allegation
that [they] may have acted in an unprofessional manner during the community
escort 01/May/2004." They were also advised that they would not be assigned to
any further escort duties pending the outcome of the investigation. Otherwise,
they were allowed to continue their duties as usual.
Lieutenant Houghton then set about trying to interview people who
could shed light on the complaint. He had what he described as a "difficult time"
getting cooperation arranging interviews with the nursing staff. He was unable to
interview any of them. However, he did receive a faxed copy of the Hospital's
own Risk Management "Occurrence Report", written by one nurse on May 1 st,
with supplemented information added on by her supervisor. Lieutenant Houghton
relied on the contents of that Report as the basis of the complaint. The nurse
who filed the Report wrote that she witnessed two CNCC staff members
"sleeping in chairs in the Eye Room while guarding an inmate awaiting treatment.
Heads lowered; eyes closed (1) CNCC member was also heard snoring. This
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was all observed by the team leader, nursing supervisor, and security." Additional
information on the Risk Management Report, written in different handwriting, later
identified as being written by the supervisor records: "Security officer on duty
completed report. He witnessed staff sle.eping. Patient smiled and shrugged. . . .
Closed door loudly to wake up duty guards."
Lieutenant Houghton interviewed Inmate A, who was unwilling to
sign a written statement. He was only willing to answer questions. The inmate did
say that while he was awaiting treatment, both Corrections Officers had fallen
asleep at the same time.
Lieutenant Houghton then interviewed the two security guards who
had been at the. Hospital during the escort. He made a contemporaneous record
of the interviews, and had both security guards sign the records as being
accurate. During their testimony, each of the security guards confirmed that the
records of the interviews were fair and accurate accounts of what had been said.
It should also be noted that both grievors accept that the security guards'
statements were given honestly. The first security guard, Doug Ward, told
Lieutenant Houghton that a nurse from the Emergency Department had reported
that a Corrections Officer was sleeping, and that she could hear him snoring.
From the nurses' station, Mr. Ward said that he could see a Corrections Officer
with his head down, his chin touching his chest and his eyes closed. Mr. Ward
then said that he walked over to the eye room, "poked" his head in the door and
saw the other Corrections Officer in a similar position to the first. However, the
inmate was wide awake and "kind of shrugged his shoulders". Mr. Ward said that
he closed the door "to prevent anyone from seeing them [the Corrections
Officers]". Lieutenant Houghton then spoke to the other security guard who had
been on duty that afternoon, Warren Sugars. Mr. Sugars advised that he had
received information from Doug Ward that two CNCC Corrections Officers were
sleeping and that Mr. Ward did not think that the inmate was wearing leg
shackles. Mr. Sugars went to investigate this, and found the door open. One
Corrections Officer was awake and the other, who had had his head down,
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immediately raised his head. Mr. Sugars reported that he confirmed that the
inmate was wearing leg shackles and told the Corrections Officers that there had
been a complaint about them sleeping. He reported that the "Officers did not
respond that they had been sleeping or not." He says he told them that even if
they had their head down for a moment, people would assume they were asleep
and that it looked unprofessional. He said that the grievors agreed with what he
had said. He also reported that the two grievors "seemed tired and it was warm
in the room". Both the security guards were shown an array of photographs of
CNCC Corrections Officers, and asked if they could identify the two who were
involved in the incident. Both security guards were able to identify Officer
Gregoire. Only one was able to identify Officer Peddle. However, the identity of
the two Officers is not disputed in these proceedings.
Lieutenant Houghton interviewed the grievors about these events in
the presence of their Union representatives. Officer Peddle was interviewed on
May 13 and Officer Gregoire was interviewed on May 17. They were not told the
specifics of the allegations against them at the outset of the interviews. During
the interviews, their attention was drawn to the specific escort. They were asked
to detail the entire escort from the time of the assignment to their return to the
facility. Some aspects of the interviews are important to note at this stage. Officer
Peddle said that he had reviewed the inmate's profile, but did not note Inmate A's
previous conviction for being unlawfully at large. Officer Peddle gave a general
account of the escort, saying that he could not remember this one in particular.
He said that he had no knowledge of any conversation with HDH staff abC?ut his
or his partner's conduct. He denied that he or his partner ever fell asleep. When
asked if there was any time that he or his partner could have been perceived to
be asleep, he replied, "That is possible; Dan never falls asleep that I know. I do
get drowsy, but in a public place I would never fall asleep." When asked if he
ever had his head down, he responded, "No, not that I remember, no. I may, at
most, have had my arm on the table with my head resting on my hand." The
accuracy of the transcription of this interview is not questioned.
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In the interview that Lieutenant Houghton conducted of Officer
Gregoire, the same questions were asked. When asked whether he had had a
conversation with any HDH staff about his or his partner's conduct, Officer
Gregoire replied, "I think Warren Sugars came in. He wanted to know why we
didn't have the inmate properly restrained. We explained that we did. Warren
took a look at the restraints and said okay. No other conversation about my or my
partner's conduct that I recalL" The following exchange is then recorded:
Q: Was the room's door open or closed?
A: To my recollection it was open.
Q: Did it remain open the whole time you were
there?
A: No, somebody closed it.
Q: Who closed the door?
A: I didn't see who closed it.
Q: At any time did you, or your partner, fall
asleep?
A: No.
Q: Is there any time that you or your partner could
have been perceived to be asleep?
A: I can't answer what other people perceive.
Q: How were you sitting in the chair?
A: Normally, straight up.
Q: At any time did you or your partner close your
eyes?
A: Other than blinking, not that I am aware of.
. . . . . . . . . . . . . . . . . . . . .
Q: Is there any further comments you would like to
make regarding this incident?
A: No, I think that you may be investigating me
because of my work with the OPSEU local
here.
Again, there is no issue about the accuracy of the notes from the interview. The
last comment reflects Officer Gregoire's firm belief that the investigation itself and
the Employer's reaction to the incident were coloured in whole or in part because
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of his active role as Vice-President of the Union and as Co-chair of the facility's
Occupational Health and Safety Committee.
Shortly after completing the interview of Officer Gregoire at
approximately 3:30 on May 17, 2004, Lieutenant Houghton added the notes of
this interview to the Report, finished his list of "Findings", and submitted it to
upper management. The Report is a complex document. It consists of a 6-page
summary of the allegations, explanation of the investigation, the substance of the
interviews, a list of possible offences, his conclusions and 25 appendices of
relevant documentation. There is no question that Lieutenant Houghton
completed his Report in a very fast fashion. The incident came to his attention on
May. 5th. The investigation was launched almost immediately. Lieutenant
Houghton explained that he drafted the Report as he progressed, recording his
procedures and the interview summaries as they occurred. He was also
compiling the documentation throughout. The last interview was of Daniel
Gregoire on May 17th and ended at 3:30. Immediately thereafter, Lieutenant
Houghton says that he added the notes and summary of the Gregoire interview
and composed his findings recommending the termination. Lieutenant Houghton
denies adamantly that he had any pre-conceived notions, including whether he
had pre-determined whether the Corrections Officers had made any false
statements. He said that he only made that conclusion after all the evidence was
gathered, including the interview with Officer Gregoire. The Report culminates
with the following:
Findinqs
>- The security officers, nurse, and inmate have
provided consistent credible statements
regarding this matter. That the officers were
observed sleeping while supervising an inmate,
at the Hospital on 01/May/2004.
>- The security staff have both identified officers
D. Gregoire and J. Peddle as being the officers
r
I
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they observed sleeping at HDH on
01/May/2004, while supervising an inmate.
:¡;., COs Gregoire and Peddle did both fall asleep
while supervising an inmate during a
community escort. As such they have breached
MTCC policy Category II, # 5: Sleeping while
on duty.
~ Both denied ever having slept during a
community escort. As such they have breached
MTCC policy category II, # 17: Making false or
misleading statements to management in the
conduct of company business.
~ Violation(s) of a category II offence may result
in immediate dismissal.
>- There exists just cause for the dismissal of COs
D. Gregoire and J. Peddle from employment at
CNCC.
These 'Findings" recommend the discharge of Officers Gregoire
and Peddle. However, Lieutenant Houghton did not have the power to authorize
termination. He submitted the Report that same afternoon, with a "verbal briefing"
to the facility's Deputy of Operations, Phil Clough'. Lieutenant Houghton says
that he personally played no role in the actual decision-making process. The
Deputy discussed the Report with the grievors' immediate supervisor, Major
Walker. The next morning, Deputy Clough set in place the procedures to
implement the terminations of the grievors. He takes full responsibility for the
decision to terminate.
In May of 2004, Deputy Clough was relatively new to the facility,
having come to Ontario in February of 2004, after 25 years in Corrections in
British Columbia. His work experience began as a Corrections Officer, and
progressed up to the level of Director. Before he entered the realm of
I Phil Cough now holds the role of Administrator at CNCC. However, since he was the Deputy
during all the time that pertains to this case, he shall be referred to as such in this Award.
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management, he also served as a shop steward and first vice-president of his
union local.
The Deputy of Operations is the "second in command" at the
facility, responsible for the day-to-day operations. Under the Services Agreement
with the province of Ontario that vests management of the facility with MTC, the
Deputy of Operations and the Facility Manager are the two roles that the province
has control over with regard to hiring. The Deputy's specific duties at CNCC
include primary responsibility for human resources. Mr. Clough testified that he is
the one who makes decisions regarding significant discipline and all discharge
cases regarding Corrections Officers. This is done in consultation with the
investigative officer, the affected employees' superintendents and/or managers
and the human resources department. The Deputy then forwards the decision to
the Facility Administrator who, in turn, signs off on the decision and forwards it to
corporate headquarters in the United States for several other signatures. All the
functionaries above the rank of the Deputy of Operations have the power to
overturn his/her decision. However, the Employer's consistent and unshaken
evidence was that the effective decision-maker with regard to the termination of
Officers Peddle and Gregoire was the Deputy of Operations, Phil Clough.
Accordingly, his role in the case was examined in detail.
Deputy Clough testified that when he was first informed about the
complaint from the Hospital, he insisted that the facility determine immediately
whether any CNCC staff members were actually involved. Once that was
determined, he instructed Lieutenant Houghton to launch the investigation and
keep him informed as the investigation progressed. Deputy Clough recalls
receiving Lieutenant Houghton's Report on the afternoon of May 1 ih. Deputy
Clough testified that he thought about the Report "overnight" , and the next day
instructed Human Resources to generate the documentation necessary to effect
the termination of both Officers Gregoire and Peddle.
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Deputy Clough explained why he felt termination was justified in
this case. There is no doubt that he accepted the Report's conclusion that the
grievors had fallen asleep during the escort. Based on that, he believed that the
grievors had created a "significant risk to public safety". This was aggravated by
the fact that the incident occurred in a Hospital where there are vulnerable adults
and children. Further, the inmate could have accessed drugs or appropriated
surgical equipment to use as a weapon. Deputy Clough also considered Inmate
A's criminal record, specifically with regard to his convictions for acts of violence,
unlawful confinement and being unlawfully at large. Secondly, Deputy Clough
was concerned about the fact that the grievors were denying the allegations in
the face of what he considered to be clear proof of misconduct. He accepted the
conclusion that they were being false and misleading during the investigation.
This was a real concern for him because he considered "honesty and
truthfulness" as critical attributes for Corrections Officers. Deputy Clough
explained that Corrections Officers have a great deal of power over inmates. The
word of an Officer can result in a loss of privileges and have a significant impact
on the parole and release possibilities for offenders. Therefore, he considered it
imperative that a Corrections Officer be trustworthy, honest and dependable.
Third, Deputy Clough testified that he took the work histories of Officers Gregoire
and Peddle into consideration. He says he viewed their records as being
"satisfactory" over their two to two-and-a-half years of employment. He asserted
that he took into consideration their previous training, what he felt was their lack
of "investment in this field of employment", their ages, their skill sets, their
prospects for re-employment, and the financial impact of a discharge on the
individuals and their families. Deputy Clough said that he then weighed that
against the potential damage this incident could have had to CNCC's relationship
with the Ministry, the public and the Hospital. For example, under the Services
Agreement, an escaped prisoner subjects CNCC to a fine of $125,000. Breaches
of security can result in lesser, yet significant, charges. Deputy Clough also
came to the conclusion that there was no evidence of mitigating circumstances to
excuse what he considered to be proven and serious misconduct by the
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Corrections Officers. On the basis of those factors, he decided that termination
of both officers was warranted.
Deputy Clough admitted in cross-examination that he came to this
conclusion despite the fact that he recognized that there were some
inconsistencies in Lieutenant Houghton's Report. Deputy Clough outlined the
"inconsistencies" he noted at the time. However, he insisted that his reading of
the Report as a whole lead to the conclusion that the inconsistencies did not
raise a "reasonable doubt" that could counter the "overwhelming" evidence from
disinterested and independent witnesses that pointed to the fact that the grievors
had been asleep during the escort.
CNCC was particularly sensitive about receiving a complaint from
the Huronia District Hospital concerning inmate escorts. This "super jail" was
relatively new to the area and it had not been warmly welcomed by all into the
community. In particular, there was some resistance from the Hospital about
having offenders brought to the facility for treatment. However, CNCC needed
the facilities and staff from the Hospital to be available to tend to the medical
needs that could not be accommodated on site. Senior staff at CNCC had
worked hard with the Hospital to try to build cooperative channels for
communication and to provide reassurances about ongoing safety and security to
Hospital staff and patients. This was essential to CNCC because approximately
20 offenders per month are sent from the facility to the Hospital to deal with
medical needs that cannot be handled by the medical unit at CNCC. Fred
Sisulak, the facility's Health Care Coordinator, stressed the importance of a
positive relationship with the Hospital. In his view the Hospital "becomes an
extension of our facility. They [the offenders] may go to the Hospital, but they still
belong to the jail. So we have the responsibility to look after them." Because of
this, senior administration from CNCC met regularly with their counterparts at
Huronia District Hospital to foster and maintain this "trust relationship" that was
said to be necessary to ensure the high level of medical care and security that
both were entitled to expect. The primary topic for discussion during these
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meetings was security. These meetings resulted in the development of several
protocols for the escorts, including the requirement that two Corrections Officers
accompany an offender at all times.
The outline above summarizes the Employer's investigation
methods, considerations and conclusions. It is now necessary to turn to. the
evidence concerning one of the main issues in this case, namely whether the
grievors did, in fact, fall asleep during the escort of Inmate A on May 1 st at the
Hospital. The Union put the Employer to the strict proof of this allegation. The
Employer called numerous witnesses to establish that the Officers were indeed
asleep. Some of those witnesses were interviewed by Lieutenant Houghton, and
the results of those interviews are recorded in his Report. Others had not been
interviewed when the decision to discharge had been made. The Union objected
to the testimony of a witness who had not been interviewed by Lieutenant
Houghton, arguing that no one should be allowed to testify if their evidence had
not been considered by the Employer at the time of discharge. However, given
that their testimony was being tendered as direct evidence of the events in
question and concerning the grounds being relied upon to support the discharge,
they were allowed to testify. It is unnecessary to recite all the details of the
testimony given by the people who witnessed the events of May 1 st. Only the
most relevant and important details are contained in the following summary.
Doug Ward was one of the Hospital's security guards on duty on
May 1 st. He testified that his responsibilities were focused on the Hospital staff
and equipment. He felt he had no direct responsibility for inmates or their escorts.
He remembered being contacted by a nurse from ER on May 15\ who told him
that a Corrections Officer on escort was sleeping, and that she could hear him
snoring. Accordingly, he went to the eye room to investigate. His notes from the
time, and his testimony, are consistent in recording that he briefly "poked" his
head into the eye room and saw both Corrections Officers with their heads down
and eyes closed. He says that they "appeared to be asleep". He has never
claimed to have heard any snoring. However, he does recall that he noticed that
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the inmate was awake, made eye contact, and then appeared to "shrug his
shoulders". Neither Corrections Officer reacted or moved when Doug Ward
looked into the room. Mr. Ward said that he then closed the door of the room
"rather hard" in the hope of waking the Officers up and shielding the public from
seeing two guards asleep. Mr. Ward then left the area and returned to the
Hospital's security office. It was close to the end of his shift. He reported what he
had just seen and done to his fellow security guard, Warren Sugars, also
mentioning that the inmate did not appear to be wearing leg shackles. Since Mr.
Sugars had once worked at CNCC, Mr. Ward felt that Mr. Sugars should be the
one who would go to speak to the two Corrections Officers.
Warren Sugars had worked briefly as a Corrections Officer at
CNCC some time before. During that time he had come to know both Officers
Gregoire and Peddle, but only "in passing". He did not know them well or
socialize with them. Mr. Sugars did respond to Mr. Ward's request to look in on
the Corrections Officers in the eye room. By the time he got there, the door to the
eye room had been opened. No testimony ever revealed how, when or by whom
the door was ever opened. However, when Mr. Sugars came into the eye room,
neither Corrections Officer appeared to be asleep. He testified that both "seemed
alert". Mr. Sugars asked to be shown whether the inmate was wearing leg
shackles. He recalls the inmate hiking up his overalls to show the shackles.
When this main concern was alleviated, Mr. Sugars recalls telling the Corrections
Officers about the fact that nurses were complaining about them appearing to be
asleep, and he advised that they should not give the nurses "any ammunition" for
complaints. He testified that the Corrections Officers did not respond; instead,
they "just listened". Mr. Sugars testified that he gave this warning because he
was aware that there were "bad feelings" and tensions between Hospital nurses
and CNCC at that time. He suggested that nurses were "looking for anything bad
that could go down. . . . If they [the Corrections Officers] had put their heads
down for a minute, they [the nurses] would say it was an hour."
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It should be noted at this point that the Union does not challenge
the honesty or credibility of Mr. Ward or Mr. Sugars. Cross-examination centered
only on their ability to accurately observe and recollect details.
The Employer also called Inmate A to testify. The Union objected to
this on the basis that this convicted criminal could offer little evidence of probative
value and that his presence could jeopardize the security and the integrity of the
proceedings. This evidence was allowed over the Union's objection, because
Inmate A could offer direct evidence regarding the events which are germane to
this case. However, the parties were ordered to arrange mutually-acceptable
security measures to conduct the proceedings with Inmate A present. These
arrangements were put in place and the hearing proceeded without incident.
Inmate A's testimony was received with the backdrop of his lengthy
and serious criminal record. He attended under subpoena, and was not in
custody at the time. He recalls being placed in the reclining chair in the eye
examination room, and what he described as a "very boring" wait for medical
attention. He testified that he remembers clearly that both grievors fell asleep
during this escort. He described Officer Gregoire as settling into his chair,
stretching his feet out, relaxing with his eyes closed and his head nodding, and
then falling asleep within three to six minutes. Inmate A also described Officer
Peddle as initially playing with the knobs or buttons on the eye machine. Then,
when Officer Gregoire was asleep, Inmate A says that Officer Peddle looked at
Officer Gregoire, looked over to the inmate, and appeared to "snicker" at the
sight. Inmate A says that he simply shrugged in response. Shortly thereafter,
Officer Peddle put his back against the wall, his hands across his chest, began
nodding, "catching himself, as if trying to not fall asleep", and ultimately "dozing
off'. The inmate recalls hearing no snoring noises, but he does recall some
"snorting" sounds from Officer Peddle as he was "succumbing to sleep". Inmate A
testified that once both grievors were asleep, he "ran through his head" the idea
of escaping. This self-described "fantasy" included tiptoeing out of the room and
grabbing a hostage or a weapon, with the goal of commandeering a car outside
18
in order to escape. Inmate A explained that he did not seriously contemplate
executing such a plan because he only had a few weeks left on his sentence. He
described this "fantasy" as a way of entertaining himself to pass the time because
he had not been offered any reading material. The inmate says that the two
Officers were asleep for "three to four to ten minutes, tops". He also recalled that
a nurse popped her head into the room, and neither Officer responded. He
testified that a security guard came in the room and "woke up" the Officers and
told them about the complaints from the nursing staff.
While Inmate A's testimony was consistent with other witnesses in
some respects, there were some significant inconsistencies revealed in cross-
examination. For example, only the inmate ever asserted that the door was
partially closed all the time, that his feet were on the floor, or that the grievors
were awakened by the second security guard. Further, the inmate had no recall
of the fact that the security guard checked to see if he was wearing leg shackles.
Given these problems with his evidence, Inmate A was asked why any of his
evidence should be relied upon. He responded by saying that he had had no
significant dealings with either grievor prior to these events, and he had no
reason to get them in trouble. On the contrary, he asserted that the reason he
was reluctant to give a signed statement when he was in custody and remained
averse to testifying was the concern about retribution from other Corrections
Officers: "It's more detrimental for my health to be here [at the hearing] ". I've
been in and out of jail for 15 years. It won't be comfortable the next time I go to
jail. I can't guarantee that I won't return. I'm hoping not to." He stated, "/ don't
care if they [the grievors] lose their jobs. I don't even want them to lose their jobs.
I'm telling you the facts. I don't want to be here. I'd be happier if they'd gotten a
slap on the wrists. J
The Employer had several nurses to give evidence under
subpoena. Cathy Laurin is the Emergency Room. nurse who authored the main
elements of the Risk Management Occurrence Report on May 1 S\ reporting that
the two Corrections Officers were asleep in the Eye Room while guarding an
19
inmate awaiting treatment. She testified that she observed this as she was
carrying a tray of instruments, passing by the area of the eye room, and heard "a
snoring sound". She testified that she came up to the doorframe of the room,
looked into the eye room, and stood there for about five seconds. She says that
she saw Dan Gregoire seated in the chair, with his head lowered to his chest, his
eyes closed, and "making a snoring sound". She also saw Officer Peddle sitting
on a stool, against the wall, with his head lowered and his eyes closed. She says
that neither Officer responded or reacted to her presence in the doorway. She
recalls looking at the inmate, and noticing a "kind of a smirk on his face, and he
just shrugged his shoulders". She testified that she delivered her instruments and
then reported what she felt was "a real safety risk" to her nurse manager.
Jennifer Graham is the nurse who initially took the grievors and the
inmate into the eye room on May 151 and assessed Inmate A's medical complaint.
After some time, she returned to the eye room because she wondered why the
inmate had not yet been sent to X-ray. She testified that she walked a few steps
into the room and remained there for a few seconds. During this time she
observed Officer Gregoire sitting with his head down and his eyes closed. Officer
Peddle was seated on the stool, with his head resting on his arm against the
table or a wall, and his eyes were closed. Neither Officer looked up, responded or
reacted to her presence in the room. She formed the impression that they were
asleep. She made eye contact with the inmate, who responded with "kind of a
shrug of his shoulders". She admits that she did not say anything while she was
in the room, and that her soft-soled shoes may not have made any sound during
this time.
Cynthia Hopkins is the nursing supervisor who was on duty on May
1, 2004. She came down to the ER department as a result of being contacted by
Ms. Laurin about the concern that the two Officers were asleep. Ms. Hopkins
looked from the nurses' station into the eye room and says that she could see
one Corrections Officer with his head "slumped on his chest", and his eyes
closed. She walked the distance of approximately 30 feet over to the doorway of
20
the eye room. She testified that she observed both grievors who both appeared
"to be asleep and not responding or moving" to her presence. She then returned
to the nurses' station where security officer Doug Ward was standing. She asked
him to go to wake up the Corrections Officers. She left the area and was later told
by Security that the Corrections Officers were awake.
All this takes us to the evidence and the explanations of the
grievors. Prior to being hired by CNCC, Jerry Peddle received a diploma from
Georgian College in law enforcement. He also had OPP training in municipal law
enforcement and had taken water search and rescue instruction. In addition, he
had work history in video and digital surveillance. His first job as a Corrections
Officer was at CNCC. In his short time of employment there, he was selected as
a member of the Institution's Crisis Intervention Team (ICIT) and was utilized as
a Use of Force Instructor: These responsibilities are indicative of superior work
performance and involved additional training, elevated skills and fitness levels.
He also served as a mentor for new Corrections Officers and for a co-op student.
The performance appraisals issued to him rate him as "above average". They
contain laudatory comments, such as: "You continue to be a valuable employee
at CNCC ... You have proven your abilities to meet required goals ... Your
professional growth as an officer displayed in your confidence when supervising
inmates [sic]. . . You seem comfortable with your knowledge of ongoing changes
of policies and operational orders." A performance log notes Officer Peddle's
"efforts and diligence are appreciated by his sergeant and his peers". It is clear
from his record and his testimony that he enjoyed his job as a Corrections Officer
at CNCC and that he had a more than satisfactory work record. He was a valued
employee until the incident giving rise to this case. Officer Peddle was also
experienced in doing escorts to the Hospital. He described himself as being
"fortunate" in being frequently assigned to do those escorts with Officer Gregoire,
someone he clearly liked and admired.
Officer Peddle's evidence concerning the day of the escort includes
his admission that he did not notice that the inmate's profile included a conviction
21
for being unlawfully at large. He considered the profile to be "pretty routine". He
says that he has no specific recall of the initial stages of the escort. As nothing
unusual occurred at that stage, and given the many escorts that were done by
him over his time in service, nothing negative should or has been inferred from
this lack of recall.
However, Officer Peddle does recall the long wait for medical
attention in the eye room with Inmate A. Officer Peddle recalls sitting on the
wheeled, swiveled stool, with a metal back that did not allow for reclining.
Instead, the back constantly pushed forward. He describes this stool as "the most
uncomfortable chair in that place". He testified that he was wearing his custom-fit
Kevlar vest that has Velcro fasteners on the sides to allow for greater comfort
while being seated. While he was sitting on the stool, he opened the vest's side
fasteners so that he could "breathe and be more comfortable". He confirmed that
he was seated near the eye examination machine, and describes it as serving as
a barrier between his line of vision to Officer Gregoire. Where Officer Peddle was
seated, he was opposite to the inmate. Officer Peddle confirmed Inmate A's
evidence that he was playing with the knobs on the eye machine as they waited.
Officer Peddle describes himself as "pretty fidgety", and explains that it is hard for
him to sit still. He also says he amused himself by looking at the magazines in
the room. He has a vague recall of some conversation with Daniel Gregoire
during the wait, but added, "We ran out of things to talk about" Officer Peddle
testified that he did not look at Officer Gregoire during the wait. Officer Peddle
testified that the eye machine blocked his view of Dan Gregoire, and that there
was no need to see Mr. Gregoire in the small room. Officer Peddle testified that
he felt his direct and clear view of the inmate was all that was required. Officer
Peddle denies that he ever fell asleep or made any "snorting" noises. When
asked if Dan Gregoire ever appeared to be asleep, Officer Peddle responded,
"Not that I noticed... Dan's like a rock. He stays up all night on night escorts."
Officer Peddle vigorously denied snickering with the inmate about Officer
Gregoire "nodding off'. Officer Peddle said, "Even if I felt something was wrong, I
wouldn't deal with it in front of an inmate. I definitely wouldn't."He did suggest
!
22
that perhaps the inmate might have thought that he was snickering over
something else. When given the opportunity to respond to the witnesses who
had testified that he was observed with his head down and his eyes closed,
Officer Peddle responded:
I can't say they didn't see. I guess they saw what they saw. No
one said anything to me. Where I was positioned, I wouldn't see
them. I'm not sure how they would see me ... Every time there is
a noise in the doorway, I didn't look up because there is a lot of
noise in Emergency.
When asked if it was possible that he did have his head down and his eyes
closed, he conceded, "It could be possible, yes." Officer Peddle admits that he
did get tired, but denies that he "nodded off'. He remembers holding his head up
with his hands, and having "heavy eyes". He stressed that if his eyes did close, it
was only for "a few seconds". He explained that when he began to feel drowsy,
he would then be stirred by the rattling of the chain connecting Inmate A's ankles.
He denies vigorously that he ever fell asleep. He says that he should be believed
because he takes his job seriously. However, he also admits that he cannot recall
the security guard, Doug Ward, ever looking into the room or closing the door,
nor can he recall the nurses who testified about coming into the doorway. He
admits that this means that he was "remarkably un-alert". Officer Peddle also
says that he has little recollection of the security guard, Warren Sugars, coming
into the room later to check on the inmate's leg shackles or speaking about the
nurses' concerns. Officer Peddle explains this by saying that Mr. Sugars knew
Dan Gregoire better and would have dealt directly with him.
The first time Officer Peddle says that he was aware of there being
any complaints or difficulties with regard to the escort was on May 11 th when
Lieutenant Houghton asked him to fill out the Occurrence Report. At that point,
Officer Peddle needed to be given particulars regarding the date, time, name of
inmate and location in order to even recall the escort. At that point he did not
recall any unusual events and therefore submitted a report to that effect.
23
Dan Gregoire had a career as a licensed electrician and a real
estate salesman prior to being hired by CNCC in 2002. He had no specific
training for this job or any background in law enforcement. However, it is clear
that he took well to his duties. His last performance appraisal rated him as above
average in every category, with comments that included: "An entry on the
'employee performance log' shows that you were an asset to the unit and
displayed good 'leadership' qualities." He also participated in the mentoring
program and has a letter of commendation on his file. Ironically, this was for his
work on an esèort.
Officer Gregoire testified about the events of May 1 st. He recalls the
conversation with the inmate at the outset of the escort wherein Inmate A gave
assurances that there would be no trouble during the escort because of the short
time left on his sentence. Officer Gregoire also recalls a conversation with the
inmate when they were settled in the eye room about scars on the inmate's leg.
Neither the inmate, nor Officer Peddle, recalled this discussion. Nonetheless,
Officer Gregoire testified that he settled himself into the eye room on the kitchen-
style chair directly inside the doorway at a 90-degree angle to the reclining chair
holding the offender. Officer Gregoire described his own posture as changing
throughout their stay in the room. Initially, he says that he sat straight up, but with
his head lowered, with his chin resting on his chest, and with his arms either on
the arm rest, in his lap or folded across his chest. As time passed, he testified
that he extended his legs out, relaxed, with his "butt forward" and his head on his
chest. He said he sat this way to relax the muscles in his neck because of
chronic pain he suffers as a result of a car accident. He also says that he looked
up, down and around the room as he sat waiting. He describes himself as being
in full uniform, with the Kevlar bullet-proof vest, a utility belt holding the ASP
baton, and being equipped with pepper spray. He says that he was
uncomfortable because the vest pushed up on his chin, and that this prevented
him from resting his chin entirely comfortably on his chest. He denies ever falling
asleep, but does admit to closing his eyes for "10 to 15 seconds at a time, a half
24
a dozen times" during his stay in the room. Officer Gregoire recalls only three
people coming into the eye room during the wait. He admits he never saw the
door being closed. However, he admits the door became closed at some point,
but he does not know when, who did it or why. He does recall one nurse, later
identified as Jennifer Graham, coming into the room once, but says he only saw
her "bottom half as she stood in the doorway". Officer Gregoire says he had a
clear view of Officer Peddle at all times, recalls Peddle fiddling with the knobs on
the eye machine, but does not recall seeing Peddle reading any magazines.
Officer Gregoire testified, "I certainly didn't observe him [Peddle] asleep at any
time. Officer Peddle can kind of relax and be in a state like he wants to sleep. But
no, /'venever seen him asleep." Officer Gregoire conceded that Officer Peddle
may have frequently closed his eyes for "four to five to ten seconds", but never
gave the impression that he was "nodding off". Officer Gregoire stressed that if
he had thought that there was a problem with a fellow escort officer falling
asleep, he would have "definitely" said something to his partner.
During his testimony, Officer Gregoire recalled that the security
guard, Warren Sugars, came into the room, asked about the leg shackles, said
that the nurses thought that the two Corrections Officers were sleeping, and
warned that this had created a bad impression. Mr. Gregoire explained that he
had not recalled this at the time of the Employer's investigation in May 2004, but
that his improved memory was triggered by the details of evidence as they
surfaced in this hearing. Officer Gregoire adamantly denies that he or Officer
Peddle were ever asleep, or that they ever snored or "snorted". He testified that
because he was an "activist" with the Union and a strong advocate of health and
safety concerns, he believes that management wanted "nothing more than to
terminate" his employment. Accordingly, he said that he was careful not to give
them any excuses by falling asleep in a Hospital setting. He adamantly denies
that there was any misconduct on the day in question. He was asked to reflect
upon his conduct during the escort, and he responded:
25
If I made anyone in the Hospital feel uncomfortable
that day, I'm sorry. I have to look at my own actions
and think maybe I wasn't very professional. But it's a
travesty to have put my family through all this for
something as trivial as closing my eyes for a few
seconds. I certainly have learned a few things from my
conduct.
He testified that if he were able to return to CNCC, he would "pay more attention
to ensure my conduct was professional at all times and if my partner stepped out
of bounds, I'd pay attention".
As mentioned above, Deputy Clough decided on the morning of
May 18 that the grievor should be discharged. He set in action the chain of
paperwork required to implement this decision and arrange the discharge
meetings. A great deal of testimony was also directed as to what happened
during the dismissal meetings. Initially, the Employer was relying on the evidence
dl,lring Officer Gregoire's meeting as an additional ground to support the
assertion of just cause for the discharge. In the end, that evidence was quite
properly not relied upon by the Employer in its closing argument and has not
been taken into consideration in reaching the decision in this case. Therefore it
shall not be recounted or referred to again. However, what is of significance is
the timing and handling of the termination meetings because it is germane to the
Union's claim that Officer Gregoire was treated differently as a result of his role
with the Union.
The evidence of Deputy Clough is that the termination meetings
could not be arranged until all the paperwork was completed, including the
gathering of the several signatures from headquarters in the United States to
confirm the decision to terminate. Deputy Clough initiated the paperwork on May
18. Even when it was completed, the meeting could not be scheduled until the
grievors, their Union steward(s), Deputy Clough and a person from Human
Resources could be gathered together. The initial paperwork reflects that May
2151 was targeted as the "requested date of termination" for both the grievors.
26
However, neither grievor was scheduled for work on Friday, May 21 st. But both
were called on May 21 st and asked to come in for an interview relating to the
investigation. They were not told that this would be a termination meeting.
Officer Gregoire was called by Lieutenant Houghton and instructed to come in
that day. Officer Gregoire asked to have a specific Union representative present.
When it became apparent that that representative was unavailable, Lieutenant
Houghton told Officer Gregoire that the meeting could not wait, and that he would
have to appear with another Union representative. Arrangements were then
made and Officer Gregoire attended the meeting as directed. He was terminated
on that day, being May 21 st.
Officer Peddle was also called on May 21 S\ but not by Lieutenant
Houghton; instead by the Human Resources office. Officer Peddle responded to
the call by saying that it was not convenient for him to come in that day, and
asked if he could have the meeting on another day, if possible. Human
Resources complied and agreed that Officer Peddle could come to a meeting the
following Tuesday. At that point, Officer Peddle did not know the purpose of the
arranged meeting. However, later in the day of May 21 5t, Officer Gregoire called
to say that he had just been fired. Officer Peddle was scheduled to work May
22nd. He reported to work that day. But he arrived to discover that word of Officer
Gregoire's termination had spread throughout the facility. Officer Peddle found
himself having to deal with numerous queries from supervisors and co-workers
about why he was still there. He found this very awkward and he became so
anxious that he felt he could not work effectively. He signed off sick for the rest of
the day, and also called in sick on Sunday, May 23rd. However, he did work his
full scheduled shifts on the following Monday and Tuesday. In fact, his Tuesday
shift consisted of off-site ICIT training. Upon his return to the facility at the end of
that shift on May 25th, he attended the meeting as pre-arranged. At this time he
was given his notice of termination.
The Union relies on the differential timing of the termination
meetings as an indication that the Employer took a different attitude towards
!
i
27
Officer Gregoire and overreacted to the Hospital's complaint in reprisal or in
retaliation for his activities on behalf of the Union and as Co-chair of the Joint
Occupational Health and Safety Committee. Accordingly, a great deal of
evidence was introduced relating to Officer Gregoire's activities as the Vice-
President of the Local and as Co-chair of the Joint Occupational Health and
Safety Committee. Officer Gregoire was active in OPSEU's organizing campaign
that lead to certification in 2002 despite the Employer's objections to the Ontario
Labour Relations Board. From 2002-2004, Officer Gregoire filed numerous
letters, complaints and grievances, many of which related to health and safety
concerns. Most, if not all, complaints were copied to the Ministry of Labour, to
Contract Compliance and to senior administration outlining a litany of concerns.
He was also very vocal and articulate at meetings and considered himself to be a
thorn In the side of management. Accordingly, he firmly believes that
management was looking for an excuse to get rid him.
There is no doubt that Dan Gregoire was a very active critic of
CNCC management. This prompted several direct responses that the Union
relies on to support the inference that his dismissal was retaliatory. In December
of 2003, he engaged in an angry dispute with his superior, Major Norm Walker, in
the midst of an institutional disturbance wherein a fellow officer had been
seriously injured. Officer Gregoire accused management of health and safety
inadequacies. Over the objections of management, he insisted on taking his
colleague to the Hospital and refused to comply with a specific order from Major
Walker to leave the area. Tensions flared, and heated words were exchanged
about the propriety of raising certain issues at that moment. However, the
players seemed to have quickly turned their concerns back to the injured officer.
Mr. Gregoire was allowed to remain in the area and take his colleague to the
Hospital. Nothing more came of that incident. However, Deputy Clough admits
that he knew that there was "friction" between Officer Gregoire and Major Walker.
One manifestation of this was that Major Walker kept trying to impress upon the
Union the need to make its complaints through CNCC's internal chain of
command instead of going directly to Contract Compliance and/or the Ministry or
28
others. Deputy Clough also tried to convince Officer Gregoire to deal directly
with CNCC about complaints before filing material with outside agencies. Officer
Gregoire repeatedly ignored these requests/demands because of his stated
desire to create a "paper trail". This clearly caused some frustration in some of
CNCC's management.
In March of 2003, Officer Gregoire was pressing to have additional
training and individualized protective vests made available for escorts at a Joint
Occupational Health and Safety meeting. Management's response up to that
point had been to cite cost factors as a bar to giving the Union what it was
seeking. Officer Gregoire succeeded in raising the ire of CNCC's Administrator,
Doug Thomson, that he reminded Officer Gregoire, "Don't forget who signs your
pay cheque." The Ministry of Labour's safety inspector was at that meeting. Dan
Gregoire turned to the Ministry official and said, "I think he just threatened my
job." However, the meeting continued, no charges were laid against the institution
or Mr. Thomson, and no action was taken against Officer Gregoire. Indeed,
before the meeting concluded, Mr. Thomson directed that the funds should be
made available for the requested vests and training. This directive is what lead
to the delivery of the custom-fitted Kevlar vests.
From January 2003 up until May 21, 2004, Officer Gregoire filed
and/or authored a large number of grievances and lodged health and safety
complaints to the Ministry of Labour covering concerns such as staffing levels,
equipment, Protocols and training. On all occasions, these complaints were
copied to Contract Compliance so that the Union could be certain that more than
the internal institution had knowledge of its concerns. In April 2003, Officer
Gregoire led a work refusal based on an assertion of a health and safety
concern. Officer Gregoire testified that the acting "In Charge" warned him that
there could be "repercussions". Whether it was said of not, there is no evidence
of any actual repercussions that can be directly linked to that incident.
29
The Employer's evidence was meant to establish that Officer
Gregoire's Union-related "activism" or advocacy played no part in the decision to
terminate. To begin with, Lieutenant Houghton and Deputy Clough were adamant
that the initial investigation was launched as a response to the Hospital's
complaint, even before anyone knew that Gregoire was involved. The Employer
relied on this evidence to show that the misconduct that management relied on
for the discharge came to light from an independent source, not as a result of a
management "plot" to rid itself of Officer Gregoire. Further, Phil Clough
emphasized that he believes he was brought to CNCC to establish a "good
relationship with the Union". He testified that unions were "new" to the U.S.-
based MTC. Accordingly, this became a focus of his interview at the time he was
hired. He was told his role would include managing labour relations with the
Union, particularly with regard to the immediate issue of resolving the Union's
demand for an alternative shift schedule. Deputy Clough says that he
understood that his mandate at the facility was to "build a good relationship with
the Union". He testified that he felt that his background as a union official gave
him the experience and insight that MTC was looking for when placing him at
CNCC. Deputy Clough claimed to understand and recognize the value of the role
that a union plays in a Corrections' setting. He said that although he became
aware that there were tensions between Officer Gregoire and some management
people because of incidents in the past, he had no interest in the history of
previous dealings with the Union or Mr. Gregoire. Deputy Clough says he had
his own approach to these matters and did not want "anyone else's baggage".
He described his relationship with Dan Gregoire as "functionary" and
"professional", and said he accepted that Officer Gregoire was "filling his role as
the Union representative". However, it is clear that Deputy Clough and Officer
Gregoire had very different approaches to how this role should be fulfilled. This
was made apparent during one of their first encounters. Officer Gregoire recalled
that after one of the first Occupational Health and Safety Committee meetings
that Deputy Clough attended, he spoke about his own background as a union
official in British Columbia and his understanding of the role of the union in the
workplace. However, he then added, "If you ever cross me, I can be the meanest
30
some [sic] bitch you've ever seen." Deputy Clough says he has no recall of this
comment, however, he does not deny saying it.
The different styles or approaches of Deputy Clough and Officer
Gregoire are also illustrated in the breakfast meeting arranged by Deputy Clough
soon after he arrived at the institution. He was aware of the fact that the Union
had been pressing for a revision of the shift schedule arrangement. Deputy
Clough wanted to find a resolution to the problem and tried to approach the
Union informally and in a non-confrontational way. So he invited Officer Gregoire
and the Union Steward, Tammy McGregor, out for an off-site breakfast to discuss
the scheduling issues. Deputy Clough drove Ms. McGregor to the meeting where
they met up with Officer Gregoire. The breakfast was paid for by Deputy Clough.
The positive result from the meeting was that a mutually-agreeable shift schedule
arrangement was ultimately achieved that incorporated the substance of what the
Union had been seeking. However, the negative fallout of the meeting was that
Officer Gregoire filed a grievance claiming overtime. The basis of the grievance
was that the meeting had been held after his shift had ended. Deputy Clough's
testimony reveals that he was clearly surprised, frustrated and/or displeased by
that grievance. He described the grievance as a "low budget move" by the
grievor or the Union. Mr. Clough said that the managers of the facility told him
that he should consider the grievance as a "slap in the face", as a "learning
experience", and as being the inevitable result of his efforts to be "proactive with
the Union". The Union also suggested that Mr. Clough had been chastised about
the meeting. But the evidence of Tammy McGregor was simply that she heard
the Facility Administrator, Doug Thomson, speaking to Deputy Clough about this
meeting and cautioning him about the advisability of taking a female Corrections
Officer to a meeting in his own car. Ms. McGregor testified that there was
nothing out of the ordinary in Mr. Thomson's demeanor during this conversation.
However, it is clear that Deputy Clough had no initial intention or desire to allow
Officer Gregoire's grievance. Ms. McGregor testified that Deputy Clough told her
that Officer Gregoire would be "nuts to think that he's going to be paid" for
attending the breakfast meeting. Again, Deputy Clough did not deny making this
31
statement; he only said that he had no recollection of it. Ultimately, Officer
Gregoire did receive the overtime pay for the breakfast meeting. The grievance
was settled on May 11 th without having to be referred to arbitration.
Ms. McGregor also recalled that one time when she was talking to
Deputy Clough about a Union matter, he responded, "I will deal with you, not your
other half', referring clearly to Dan Gregoire. This was not denied or contradicted.
However, it must also be noted that there is no evidence that Deputy Clough
actually refused to deal with Officer Gregoire on any matters of Union business.
CNCC's Administrator at that time, Doug Thomson, denies that
Officer Gregoire's Union activity had anything to do with the discharge. Mr.
Thomson testified that he took no offence to the steady stream of complaints,
appeals and grievances filed by Officer Gregoire and on behalf of the Union. As
Mr. Thomson explained, "This was a new facility; there were lots of issues." Mr.
Thomson also said that he was not bothered by the fact that Officer Gregoire
insisted on filing copies of everything with Contract Compliance. Mr. Thomson
said that he knew that all the complaints would eventually come back to him in
order to be addressed, however, Officer Gregoire's tactics simply complicated
and delayed some issues. Mr. Thomson added, "My sense was Dan was
frustrated by a lack of response from management, and some of that was valid...
I believe Dan was exercising his rights for the staff." Mr. Thomson also credited
Dan Gregoire as acting in good faith. The legitimacy of Officer Gregoire's
activities is not challenged by the Employer in this case, and the evidence shows
that many of the Health and Safely complaints filed with the Ministry resulted in
compliance orders. In addition, many of the concerns he raised in meetings or
through correspondence and/or grievances were ultimately addressed.
The grievance also includes a claim for defamation. One aspect of
the foundation for the claim is the stipulated evidence that Officer Gregoire's wife,
while working in another facility, was approached by a co-worker who said that
she had heard that Officer Gregoire had been fired "for sleeping on the job". The
32
other evidence that the Union relies upon is the fact that Lieutenant Houghton
showed the security guards at the Hospital photographs .of CNCC Corrections
Officers, including the grievors, during the investigation interviews.
SUBMISSIONS OF THE PARTIES
Counsel devoted two full days to final submissions. Only an outline
of their thorough arguments has been set out in this Award.
Submissions of the Employer
Counsel for the Employer began by suggesting that the issues
about whether the dismissal constitutes a reprisal and whether the grievors had
been defamed are essentially "distractions" taking away from the substantive
question of whether there was just cause to dismiss the grievors. Counsel began
by conceding that it bears the onus under the Occupational Health and Safety
Act, Section 60, to establish that the dismissal was not a reprisal. Counsel also
conceded that if it can be demonstrated that there is a causal link between
Officer Gregoire's Union activities and his dismissal, then the termination would
be void. However, counsel argued that the evidence does not create the
necessary causal link. Counsel stressed that the evidence established that Phil
Clough was the decision-maker, he only came to the institution in February 2004,
and he had no dealings with Officer Gregoire prior to this. The Employer relied on
Deputy Clough's claim that the "pre-history" of Officer Gregoire's Union activism
prior to Deputy Clough's arrival was of no interest to him and played no role in
the decision to terminate. Further, it was argued that the incidents that the Union
offered as evidence of anti-union animus fail to establish the point. It was
stressed that two Corrections Officers were dismissed for the same reason, and
that there was no evidence that Officer Peddle was treated any differently than
Officer Gregoire. Counsel suggested that the analytical approach to take to this
issue could be found in the decision of Abdulkadir v. Dough Delight Inc. [1998]
a.L.RB. Rep. 405, at pp. 16-18.
33
Counsel for the Employer then addressed the Union's claim that the
investigation and conduct of the Employer had defamed Officer Gregoire's
character. The Arbitrator was taken through an interesting exploration of the law
on qualified privilege, but primarily it was stressed that "truth" is an absolute
defence to a claim of defamation, as set out in Strong v. M.MP. (1997] O.J. No.
2557. Reference was also made to Botiuk v. Toronto Free Press Publications
Ltd., [1995] 3 S.C.R. 3 (S.C.C); Chopra v. Hodson, (2001] AJ. 576 (Alta. a.B.);
Transit Windsor and Amalgamated Transit Union, Local 616 (2003) 123 L.AC.
(4th) 27 (G.J. Brandt). Primarily, it was argued that if the evidence establishes
that the Officers were indeed sleeping on the job, then the claim of defamation
must fail.
Turning to the question of just cause for discharge, counsel for the
Employer relied upon the Union's concessions that the grievors were aware that
falling asleep during an escort is a very serious offence. It was argued that the
evidence establishes that the grievors were responsible for a "gross" breach of
security which, in and of itself, and the circumstances in which it occurred,
amount to just cause for dismissal. It was said that this was exacerbated by the
fact that when confronted with the complaint, the grievors "did not come clean" I
and have failed, to this day, to acknowledge that they did anything wrong.
Counsel for the Employer said that this denial amounts to the "final nail in the
coffin of the Union's case".
It was stressed that Corrections Officers playa critical role in the
administration of justice and hold positions of trust. Accordingly, they should be
held to a high standard of care because their primary function is to safeguard
public security, their fellow officers and the safety of inmates. It was asserted that
the grievors' misconduct in this case is even more "egregious" because it
occurred in the community. The fact that they were wearing a Kevlar vest, and
were armed with an ASP baton and pepper spray, were said to be indicative of
the high degree of risk associated with these kinds of escorts. They were said to
34
have ignored their training that emphasizes the need to be aware and alert, and
that "dire circumstances" could be contemplated if the inmate had attempted an
escape. It was argued that these circumstances were further aggravated by the
nature of the inmate, his criminal record, and the reality that he posed a serious
potential risk to the public and the Officers.
Counsel for the Employer also stressed that the Employer has a
"very significant operational and economic interest" in ensuring safety because of
the repercussions breaches of security could have on MTC's relationship with the
Huronia District Hospital and the Services Agreement with the Ministry of
Corrections Services. An escaping prisoner would have negative impact on both
the renewal of the contract and the relationship with the Hospital. Counsel
stressed that this is not analogous to the typical arbitral cases where employees
are found sleeping on the job in an industrial or manufacturing setting. It was
stressed that these allegations have to be viewed in the context of this specific
enterprise where lack of attentiveness puts the public security at risk. It was also
argued that the Corrections Officers have to be considered to be people in a
position of trust. It was said that the public has to trust that the Corrections
Officers will do their job, and the Officers themselves have to trust that their
colleagues will do their jobs properly. In the context of an escort, they work with
relatively little supervision, and are entrusted with the care of a "vulnerable
population". The reality of the risk factor was said to be exemplified by Inmate A's
fantasy about how he could have escaped. The Employer relied on the following
cases as illustrative of the standard of care expected of Corrections Officers and
the consequences of sleeping on the job, dishonesty, or compromising security:
Re Tousignant and Treasury Board (Solicitor-General of Canada) (1979) 26
L.A C. (2d) 132 (Garant); Courchesne v. Canada (Treasury Board - Solicitor
General) [1982J C.P.S.S.R.B. No. 119; Re Government ofthe Province of British
Columbia and British Columbia Government Employees Union (Corrections
Services Component) (1987) 27 L.AC. (3d) 311 (Hope); Alberta and A. UPE.,
Re (1994) 51 L.AC. (4th) 397 (McFetridge); Cottenoir v. Canada (Treasury Board
- Solicitor General Corrections Services) [1997J C.P.S.S.R.B. No. 114; Luc
35
Rivard and Treasury Board (Solicitor General of Canada - Corrections Service)
[2002] P.S.S.R.B. 75; Domingos Dealbuquerque and Treasury Board (Solicitor
General of Canada), [1978] P.S.S.R.B. 166-2-4836; OPSEU (Cassidy) and The
Crown in Right of Ontario (Ministry of the Solicitor General & Corrections
Services) [1997] G.S. B. 1456/96; Aristos Constantin George Kikilidis and
Treasury Board (Ministry of Solicitor General) [1977] P.S.S.R.B. 166-2-3180-2;
Re Oshawa General Hospital and Ontario Nurses' Assoc. (1976) 12 LAC. (2d)
182 (O'Shea); and Dowling v. Ontario (Workplace Safety and Insurance Board)
[2004] O.J. No. 4812.
Counsel for the Employer then addressed the specific issues of
credibility in this case. It was argued that the evidence of Inmate A should be
accepted as reliable. It was stressed that Inmate A had no personal relationship
with any of the grievors, he did not come forward with his story, and he showed
no interest in getting anyone in trouble. It was said that his evidence indicated a
reluctance about testifying against Corrections Officers in general and that this
should lend weight to his testimony. Further, it was said that the evidence of the
numerous nurses should be accepted as reliable because none had any personal
relationship or animosity against the grievors, all told credible stories and they
simply testified as to what they observed. It was stressed that their evidence was
consistent and is corroborated by the fact that they expressed concerns to their
manager and security, as well as filing written reports on the same day. It was
argued that there is "no credible rationale" for why any of these nurse witnesses
would lie. Accepting that there was a suggestion from Warren Sugars that some
of the nurses "had it in" for the Corrections Officers from CNCC, this was
dismissed as vague and speculative, and not amounting to a "credible motive" for
all the nurses to fabricate evidence. Instead, the fact that so many nurses
witnessed the events, reported it to their supervisors and security, and recorded
their observations, was said to be consistent only with a finding that their
evidence is reliable. Further, it was suggested that they could not all be mistaken
about their perception that the grievors were asleep. It was stressed that they are
nurses, professionally trained to assess the physical condition of individuals.
36
Therefore, their professional observations were said to be persuasive. Further,
the Employer stressed that Officer Gregoire eventually agreed that security guard
Warren Sugars related to the grievors that the nurses thought they were asleep
in the eye room. The fact that neither Officer Gregoire, nor Peddle, responded to
this complaint at the time was said to suggest that they knew it was true. This
was said to lead credence to the evidence of the other witnesses.
In contrast, it was argued that the grievors' versions of events ought
to be rejected. It was pointed out that while they initially gave absolute denials of
any misconduct, their evidence at this hearing included many details and
explanations that were not given to management when they were questioned.
Counsel for the Employer meticulously outlined how the grievors' evidence
"improved" from the time they were first interviewed by Lieutenant Houghton to
the time that they testified. It was said that this should indicate that their evidence
is not credible, that there was a "willful withholding of information during the
investigation", and that they acquired an improved "ability to tailor their evidence"
to meet the Employer's evidence as it unfolded at the hearing. Further, or in the
alternative, it was argued that even if the grievors' evidence is accepted as true, it
shows such a complete lack of vigilance and attention during the critical times. It
was submitted that even if they were not asleep, they were "so unresponsive and
comatose that they might well have been asleep". As such, it was said that they
are guilty of an "egregious dereliction of duty", and this alone should justify
discharge. However, the Employer's primary point was that the grievors'
explanations were said to be completely incredible. It was stressed that the
grievors admitted that they were unaware of the nurses and first security guard
who entered and/or looked into the doorway of the eye room. Therefore, it was
suggested that it defies common sense to accept that Dan Gregoire could be
awake in the doorway and remain completely unaware of the activities around
him. It was also argued that Officer Peddle should not be believed when he
claimed that he didn't look at Dan Gregoire for most of the one and a half hours
while they were in the room, or that his vision was blocked by the eye machine.
37
Counsel also argued that the grievors' lack of reliability and honesty
should indicate that the employment relationship cannot be re-established. The
Employer pointed to the evidence that established that the word of a Corrections
Officer can significantly affect the rights and freedom of inmates. Counsel argued
that unless a Corrections Officer can be trusted as being honest, slhe could not
be able to fulfill their role properly.
Counsel for the Employ~r also stressed that the Union has brought
forth no evidence to establish any reason to mitigate against the penalty of
discharge. Great reliance was placed on the following decisions to support the
proposition that a high level of deference ought to be accorded an employer with
regard to issues of security: see Aristos Constantin George KikiJidis and Treasury
Board (Ministry of Solicitor Genera/), supra; and Re United Steelworkers of
America, Local 3257 and the Steel Equipment Co. Ltd. (1964) 14 LA. C. 356
(Reville). Given that the allegations concerned a serious offence, there was no
misunderstanding of the rules, there was no evidence of economic hardship, no
long service and no admission of wrongdoing, it was said that there are no
persuasive reasons to substitute a lesser penalty. Accordingly, it was said that
the grievance ought to be dismissed.
Submissions of the Union
Counsel for the Union argued that the decision to discharge the
grievors was wrongfully tainted by factors of reprisal and discrimination because
of Officer Gregoire's Occupational Health and Safety Committee and Union
activities. In addition, the Union argued that there were "serious procedural and
substantive flaws in Lieutenant Houghton's Report" and the Employer's decision-
making process. Therefore, it was said that the discharges were unjust and
unwarranted.
The Union's two-pronged attack on the discharges often
overlapped. It was submitted that Lieutenant Houghton did not approach the
38
investigation with an open mind. It was said that this is revealed by the structure
of the Report because it shows a list of potential offences that were admittedly
identified before the investigation was completed. The Union then accused
Lieutenant Houghton of displaying a pre-conceived bias by focusing the
investigation on finding proof of those identified offences instead of operating in
an even-handed way. For example, it was suggested that Lieutenant Houghton
may have "pre-drafted the allegation" of dishonesty, which should never have
been contemplated until after all the interviews were conducted. It was also
argued that the evidence discloses that the Report was drafted with "excessive
haste" I which would only be consistent with a pre-determination of the final result.
Counsel for the Union then went through a meticulous analysis of
the evidence, drawing upon several details to cast aspersions on Lieutenant
Houghton's credibility, reliability and accuracy. Counsel relied on many of the
points established in cross-examination that are listed on pages 10-11 of this
Award. Some of these examples did show that Lieutenant Houghton operated on
assumptions and inferences which have never been corroborated, and that he
failed to appreciate some of the difficulties with the evidence that he did gather.
Lieutenant Houghton was also criticized for failing to interview the nurses from
the Hospital. It was said that this failure establishes that the Employer failed to
conduct a fair and proper investigation prior to reaching the decision to
discharge.
Lieutenant Houghton and the Employer were also criticized for the
fact that the allegations against the grievors were not put clearly to them until
they were in the middle of their interviews on May 13th and 1 ih. It was suggested
that this was unfair, and indicates an attempt to get enough information against
the grievors rather than a genuine investigation into the truth of the matter. It was
submitted that the grievors were entitled to be given sufficient details of the
allegations against them so that they would have a reasonable opportunity to
respond to the allegations. To support this proposition, the Union relies on the
decision in Air Canada and Canadian Automobile Workers, Local 2213 (1993) 34
39
LAC. (4th) 13 (Frumkin); and Pembroke General Hospital and Ontario Nurses'
Association (2005) 141 LAC. (4th) 306 (Stephens).
Lieutenant Houghton was also criticized for the fact that the
summaries of evidence contained in his Report were not always consistent with
the evidence that he had received. Further, he was said to have failed to have
recognized, followed up on, or explored inconsistencies or ambiguities. Counsel
for the Union submitted that Lieutenant Houghton ought to have been alerted by
the "red flags" raised by some of the difficulties in the evidence, and that this
indicates that the investigation was not thorough enough.
Counsel for the Union submitted that viewed as a whole, the
evidence surrounding the investigation supports a finding of bad faith on the part
of the Employer. It was said that this finding should weigh heavily. against a
finding of just cause and be central to the analysis of the issue of anti-union
animus. It was argued that the Employer did not give the grievors the benefit of a
full and fair investigation. Therefore, it was said that it "does not lie in the
Employer's mouth to suggest that the grievors have failed to come clean".
Counsel for the Union also criticized the Employer for treating this
case as belonging to the serious category of "sleeping on the job". The
Employer's own system of categorizing offences includes a lesser offence of
"inefficient performance". It was said that the Employer made the inappropriate
and unfair choice to treat this matter in the most serious possible light. It was
stressed that as early as May 13th, the Employer had admissions from Officer
Peddle that his head was down and he was propping up his arm. This would
have been sufficient to warrant minor discipline, and could have ended the matter
at that point. Indeed, it was said that at the investigative stage, the Employer had
sufficient admissions from both grievors to support minor discipline for either
carelessness or inefficient performance of duties. Having chosen to escalate this
to the more serious offence of sleeping on duty, it was said that the Employer
bears a heavy onus of proving the allegation. The Union then relied on the
40
following cases to show the degree of proof necessary in order to establish that
someone was actually asleep: ADM Agri-Industries v. National Automobile,
Aerospace, Transportation and General Workers Union of Canada (CAW-
Canada), Local 195 [2000] C.L.AD. No. 764 (QL) (Rayner); Air Canada and
International Assn. of Machinists and Aerospace Workers (Murray Grievance)
[1996] C.L.AD. No. 414 (Stewart); The Government of the Province of Alberta
and The Alberta Union of Provincial Employees (May 15, 1990, Moreau,
unreported); and Construction and General Workers' Union, Local 92 v. North
American Site Development Ltd. (Berze Grievance) [2002] AG.AA No. 62
(Lucas). These cases were relied upon to argue that arbitrators require reliable
indicia to prove that someone is sleeping on duty, whereas it was said that
sufficient proof is lacking in this case. It was stressed that no witness who
thought the grievors were asleep took any direct action to try to wake them up,
and no witness observed the grievors for more than a few seconds. Further,
there was no evidence regarding the typical indicia of sleep, such as eyes closed
for an extended period of time, lying in a horizontal position, being startled when
approached, or having limp limbs. Accordingly, it was said that the evidence was
inadequate to establish that the grievors were, in fact, asleep. Counsel then
addressed the fact that Cathy Laurin did testify that Officer Gregoire was snoring.
It was conceded that snoring is ordinarily considered compelling evidence of
being asleep. However, the Arbitrator was asked to accept the evidence of the
grievors, in which they both were adamant that neither made snoring noises. It
was suggested that this was the proper approach because no other witness
corroborated the allegation of snoring. Further, it was suggested that Ms. Laurin's
evidence contained exaggerations and "puffery", and was, therefore, not entirely
reliable. Counsel also pointed out that the inmate suggested that only Officer
Peddle made snorting noises, and did not confirm that Officer Gregoire made any
snoring noises. As a result of this inconsistency, it was said that the Employer
cannot rely upon two contradictory witnesses. Further, counsel for the Union
argued that no reliance should be placed on any part of Inmate A's evidence
because important parts of his testimony were "widely at variance" with the rest
of the Employer's witnesses.
41
In contrast, counsel for the Union argued that the evidence of the
grievors ought to be accepted. It was stressed that Officer Peddle was forthright,
and made admissions in his evidence that could be prejudicial to his own case.
Answering the allegation that there had been tailoring of the evidence, it was
stressed that neither Officer Peddle, nor Officer Gregoire, tried to account for the
several nurses and security guard who testified about coming into the room or
the doorframe. It was argued that the grievors should be credited for being
honest and forthright when they conceded that they had no memory of the entry.
Further, it was said that Officer Peddle's admission that he was feeling drowsy,
but kept hearing the inmate's chain rattling, has a ring of plausibility to it. It was
argued that the Officers' inability to recall specific details of the escort is
understandable given the frequency of their escort duties and the fact that they
were not alerted to the allegation until weeks after the event. Both Officers were
also credited by counsel for the Union for their reluctance to give self-serving
answers. For example, they both admitted that they did not look carefully at the
client profile of the inmate before the escort. This was said to bean indication
that they were reliable witnesses.
Counsel for the Union argued that the evidence should lead to the
conclusion that there was an anti-union animus involved in the decision to
terminate Officer Gregoire. Admitting that this is a difficult allegation to establish,
it was submitted that the evidence in this case is sufficient to make such a
finding. Primarily, the Union relies on what it calls direct evidence of avert
expressions of anti-union animus by top CNCC officials. In particular, the Union
points to Deputy Clough's statement to Officer Gregoire that, "If you ever cross
me, I can be the meanest some [sic] bitch you've ever seen," This evidence was
not denied or contradicted, and it occurred in the context of Officer Gregoire
exercising his duties as Co-chair of the Occupational Health and Safety
Committee. This was said to be evidence of intimidation or coercion that signaled
that the Deputy demanded that the Union act only in ways that were acceptable
to him. The Union argued that this behaviour contravenes Section 70 of the
42
Labour Relations Act. In support of this, the Union relies on Keith MacLeod
Sutherland v. Labourers' International Union of North America, Labourers'
International Union of North America Local 493, Angelo Fosco, AE. Goia, MA
Ross, and G. Mullen [1983] O.L.R.B. Rep. July 1219. Counsel for the Union-
argued that Deputy Clough's comment must also be connected with later
comments by Deputy Clough to Officer Gregoire criticizing him for raising
complaints with Contract Compliance and outside the institution, rather than
dealing directly through the internal chain of command. It was argued that this
indicates that Deputy Clough was trying to influence the way the Union was
conducting its business.
The Union also pointed to the "scorn" that Deputy Clough
expressed with regard to the overtime grievance filed after the breakfast meeting.
Deputy Clough was criticized for endorsing management's characterization of the
grievance as it being a "low-budget move and a slap in the face" to Deputy
Clough himself. This was said to indicate Deputy Clough's anger at Officer
Gregoire's "temerity" in bringing a grievance over what was supposed to have
been a friendly get-together for breakfast. It was acknowledged that the Employer
had every right to dispute or deny the grievance. However, it was argued that
management's comments suggest that Deputy Clough personalized the
grievance, and that Officer Gregoire was perceived as an impediment to Deputy
Clough's agenda to promote positive labour relations. Finally, the Union
suggested that some personal hostility may have been created because Officer
Clough was spoken to by Administrator Thomson after Tammy McGregor was
given a ride to the breakfast meeting. It was suggested that all this created
animosity on Clough's part towards the whole incident and Mr. Gregoire in
particular.
The Union also relied on the fact that Deputy Clough told Ms.
McGregor that he would deal with her rather than "her other half'. This was said
to amount to overt discrimination and interference with the Union's ability to
represent its employees contrary to Section 3 of the Collective Agreement and
43
Section 70 of the Labour Relations Act. This was also said to be representative of
Deputy Clough's inappropriate attempt to "pick and choose the Union's
representatives based on their style and consistent with his preference to carry
out union and management relations in a manner amenable only to him". This
was also said to be inconsistent with his claim that his relationship with Dan
Gregoire was both "functional and professional".
The Union also relied on other evidence to support the contention
that there was an anti-union animus in this facility. First, it pointed to the fact that
the Union was not voluntarily recognized. Secondly, the Union relied on Major
Walker and other managers' complaints to the Union about its persistence in
filing allegations against the Employer with Contract Compliance, rather than
dealing directly with the Employer. The Union also relied upon the animosity that
was admitted between Officer Gregoire and Major Walker.
The Union also pointed to the uncontradicted evidence that Officer
Gregoire was told by Administrator Thomson, in the context of the Occupational
Health and Safety Committee meeting, "Don't forget who you're working for or
who signs your pay cheque." This statement was said to be a threat within the
meaning of the Labour Relations Act and the Occupational Health and Safety
Act. The Union relies on the following cases with regard to the analysis of
whether an unfair labour practice or retaliation has occurred: Teamsters,
Chauffeurs, Warehousemen and Helpers Union, Local No. 880 v. Matthews The
Lumber People [1993] O.L.R.B. No. 4772; Keith MacLeod Sutherland v.
Labourers' International Union of North America, Labourers' International Union
of North America Local 493, Angelo Fosco, AE. Coia, MA Ross, and G. Mullen
[1983] O.L.R.B. Rep. July 1219; The Ontario Public Service Employees Union v.
The Children's Aid Society of Ottawa-Carleton [1984] O.L.R.B. Rep. February
240; Ralph Marion, Jim Fawcett, Roland Vautour v. Commonwealth Construction
Company [1987] O.L.R.B. Rep. July 961; and Rebecca Miller v. Tigercat
Industries Inc. [2004] O.L.R.B. No. 4051 (QL) (Ont. L.R.B.).
44
Union counsel acknowledges each of the incidents mentioned
above may not alone prove anti-union animus or retaliation. However, it was
stressed that when the statements and incidents are considered cumulatively,
they should lead to the conclusion that an improper animus played a part in the
decision to discharge. Both parties have agreed that if this improper animus
played any factor in the decision to terminate, the discharge of Mr. Gregoire
would be void. It was also submitted that this anti-union animus may have "co-
existed" with what the Employer is trying to allege as "legitimate" grounds for the
discharge. Accordingly, it was stressed that the discharge should be set aside.
It was also said that both Deputy Clough's and Major Walker's
denials of the anti-union animus and reprisal should be dismissed as being
unreliable. In particular, it was pointed out that Deputy Clough's evidence is
untrustworthy because he claimed to have taken into consideration the grievors'
previous training and work records, yet he had no knowledge or appreciation of
the grievors' actual records or circumstances. Further, Deputy Clough's evidence
regarding his number of consultations and discussions about the discharge was
not consistent with the evidence given by Administrator Thomson. Further, the
Union placed great reliance on the fact that Officers Peddle and Gregoire were
treated quite differently in terms of the implementation of their dismissals. Simply
put, Officer Gregoire was forced to appear for a meeting on May 21 S\ at which
time he was discharged. In contrast, Officer Peddle's request to have the meeting
on a more convenient day was accepted. He remained employed and scheduled
to work for four more days until he was dismissed at the end of his shift on May
25th. It was argued that the Employer has failed to provide any reasonable
explanation why the Gregoire termination was "put on the fast track". It was
argued that an arbitrator should be alert to such unusual or atypical conduct in
circumstances like this, and use it as a basis to draw a negative inference against
the Employer: see Toronto (Metropolitan) v. Canadian Union of Public
Employees, Local 79 (Votsch Grievance) [2001] O.L.A.A. No. 376 (Marcotte). It
was said that the evidence creates a prima facie case of discrimination in these
circumstances that this Employer has failed to rebut.
45
While the Union's primary position is that the grievors have not
been proven to be asleep, counsel for the Union also argues that no matter what,
if any misconduct was alleged or occurred, the penalty of dismissal was not
proportional to the events. Admitting that this submission is bound up with the
issue of just cause, it was argued that a disproportionate reaction can be an
indicia whether an anti-union animus or reprisal is present.
Counsel also argued that there are mitigating circumstances in this
case that need to be taken into consideration. It was stressed that neither grievor
has a prior disciplinary record. While their length of service may be brief because
of the newness of the facility, both had excellent employment records. It was said
that there was no reason to believe that their pattern of excellence would not
continue if they were reinstated. It was also said that even if there was a
conclusion that either or both of them "dozed off" in the course of their duties, it
was stressed that this should be viewed as inadvertent and momentary. This
situation was said to be less serious than the "nesting" cases where employees
have been found to have deliberately allowed themselves to sleep during a shift.
Counsel for the Union suggested that the following cases establish the
appropriate arbitral approach to "sleeping" offences: ADM Agri-Industries v.
National Automobile, Aerospace, Transportation and General Workers Union of
Canada (CAW-Canada), Local 195, supra; Air Canada and International Assn. of
Machinists and Aerospace Workers (Murray Grievance), supra; The Government
of the Province of Alberta and The Alberta Union of Provincial Employees, supra;
Construction and General Workers' Union, Local 92 v. North American Site
Development Ltd. (Berze Grievance), supra; Lagacé and Treasury Board
(Solicitor General Canada - Corrections Service) [1989] C.P.S.S.R.B. No. 83
(QL) (Chodos); Re The Boys' Home and Canadian Union of Public Employees,
Local 3501 (1996) 57 L.A.C. (4th) 379 (Springate); Sifto Canada Inc. and
Communications, Energy and Paperworkers Union of Canada, Local 824
(February 22, 1999, MacDonald, unreported); The Government of Manitoba and
The Manitoba Government Employees Association (March 6, 1989, Baizley,
46
unreported); and The Province of Manitoba and The Manitoba Government
Employees' Association (November 30, 1989, Hamilton, unreported).
By way of remedy, the Union seeks a declaration that the grievors
were dismissed without just cause and an order for full compensation for the
monetary losses, plus interest. Specifically for Officer Peddle, it was suggested
that he should be reinstated subject to a lesser penalty of either a letter of
reprimand or a two-day suspension. With regard to Officer Gregoire, if there is a
conclusion that his discipline was "tainted" by anti-union animus, it was said that
he should be reinstated with full compensation, and that there ought to be a
ruling that his discharge contravened the Labour Relations Act and the Health
and Safety Act. If anti-union animus is not found, it was said that he ought to be
reinstated in the same circumstances as Officer Peddle.
The basis of the claim for defamation is the comments made by
Lieutenant Houghton in the context of his interview of security guard Ward and
the evidence that the reason for the discharge spread to the community. It is
thought $5,000 in damages for this. The Union relies on the following case in this
area: Surry (City) v. C.UPE., Local 402 (Weber Grievance), [2003] B.C.C.A.A.A.
No. 243.
Employer's Reply Submissions
Counsel for the Employer addressed the Union's submissions
regarding anti-union animus and reprisals for health and safety concerns by
saying that the Arbitrator should focus on the actions of the Employer as a whole,
rather than the isolated statements relied upon by the Union. Addressing
specifically Deputy Clough's statement that if crossed, he could be a mean "some
bitch" [sic], it was submitted that this was said in the context of mature labour
relations, and should be interpreted as nothing more than something like, "If you
push me, I'll push back." It was suggested that given the context of the
conversation and the personalities involved, this should be recognized as simply
47
"testosterone was at play". It was submitted that the evidence does not support a
finding that the statement was made or received as a threat. It was also said that
this has to also be seen in the context of Deputy Clough coming to the institution
with a mandate of trying to establish a "good relationship" with the Union, and his
pro-active efforts to implement positive problem-solving measures. The Employer
also argues that these words should be viewed in the context of the fact that
Deputy Clough did listen to Officer Gregoire and the Union's demands. Deputy
Clough was instrumental in implementing the shift change schedule that the
Union was advocating. Further, despite his chagrin about the overtime
grievance, Officer Gregoire was paid the 2-1/2 hours of overtime claimed for the
breakfast meeting. This was said to be inconsistent with any kind of reprisal
activity or anti-union animus.
Further, it was stressed that the investigation into this incident was
not precipitated by any anti-union animus. Instead, it arose out of a complaint
received from the Hospital and that management took great pains to ascertain
whether or not any CNCC employees were even involved. This was said to
counter the Union's suggestion that management was looking for an excuse to
get rid of Officer Gregoire. Instead, it was said to be evidence of the responsible
way the Employer responded to the complaint and launched the investigation.
Counsel for the Employer stressed that this Employer has invested
a great deal of time and effort in the training and development of both grievors. In
particular, Officer Peddle has received ICIT training. Because of this, counsel
suggested that this Employer would not want to fire someone like him and that it
is simply not believable that both grievors would have been terminated in whole
or in part because of management's displeasure with Dan Gregoire as a Union
representative. Finally, it was stressed that although the Union pointed to several
conversations and circumstances in an attempt to establish an anti-union animus,
no complaints or grievances were ever filed with regard to any of the matters.
Further, one of the statements was even made in the presence of a Ministry of
Labour official. It was suggested that if there was any substance to any parts of
48
the Union's anti-union or reprisal arguments, either the Ministry or Dan Gregoire
would have taken action on these much earlier.
Counsel for the Employer argued that there is no merit to the
submission that the grievors were treated differently in terms of the timing of their
dismissals. It was suggested that the difference is simply the fact that Officer
Gregoire came in on the day requested, and Officer Peddle asked to come in a
few days later. It was said that there is no significance to this accommodation of
Officer Peddle's request.
THE DECISION
The Employer alleges that the basis for the decision to discharge
the grievors is that they fell asleep while on escort duty. Therefore, the first
question that has to be addressed is simply whether the grievors fell asleep
during the escort of Inmate A. After careful consideration of all of the evidence, it
must be concluded that the Employer has succeeded in establishing that the
grievors did fall asleep on May 1 sl during the escort. The Union and the grievors
are entitled to know the reasons for this conclusion.
It must be acknowledged at the outset that there is no conclusive
proof that the grievors were asleep. They were not woken up by anyone directly,
they were not observed over long periods of time, and there is no scientific
evidence to prove they were actually asleep. It is also possible to honestly
believe that someone is asleep if s/he is immobile and has his/her head lowered
and eyes shut. Indeed, the impression of being asleep would be inevitable.
However, impressionist evidence is not enough to sustain a discharge where
serious misconduct is alleged. The evidence must be cogent and convincing in
order to sustain a discharge. The cumulative evidence in this case meets that
test. The grievors were observed by several witnesses who independently came
to the conclusion that they were asleep. Most of those witnesses were registered
nurses, who are trained to observe physical symptoms. None of them knew the
49
grievors previously. The Union did not challenge the credibility of those nurses or
the security guards. The only thing the Union challenged was their ability to
accurately observe and recall. However, all the nurses and the security guards
gave clear and rational testimony. Their memories were good about many
details. Where they were unable to recall details, they conceded their own
shortcomings. Therefore, their evidence stands as credible, cogent and reliable.
While none of them observed the grievors over long periods of time, they gave
evidence of a sustained stream of independent Hospital personnel all taking the
time to observe the situation and coming to the conclusion that the grievers were
asleep. These conclusions were based on the grievors' posture and the
inexplicable fact that neither responded when anyone walked in the doorway or
the room. Even more importantly, one nurse testified that she became aware of
the situation by hearing Daniel Gregoire snoring. While she is the only nurse who
heard such a sound, that does not cast out on her credibility. Snoring can either
be sustained or intermittent. It is possible that the snoring did not occur when the
other witnesses were close to the room. It is true that the cross-examination of
the Hospital personnel elicited some inconsistencies, but none were with regard
to major issues and all were of the type one would imagine to find with different
people recalling events that occurred a long time ago. Further, it must be noted
that the nurses expressed a spontaneous and sustained concern about the
situation. They reported the situation to their supervisor and filed a Risk
Management Occurrence Report that day. All this is consistent with a serious
and sustained concern. It is not consistent with the suggestion that the grievers'
eyes may have been shut for a mere number of seconds.
There is further evidence to support the finding that the grievors
must have been asleep. At the nurses' request their supervisor and Hospital
security became involved with the situation. That supervisor and a security guard
went to investigate and reached the same conclusion. This means that over a
sustained period of time and while a number or people were coming to the
doorway of the eye room, the grievors remained oblivious to what was going on
around them. They admit that they were unaware of most of this activity. Neither
50
recalls all the witnesses who testified. This cannot be explained simply by the
suggestion that nursing staff wear rubber-soled shoes that make no sounds. Part
of a Corrections Officer's responsibility on an escort is to be alert to all the people
who may have access to an offender. The only explanation for the grievors'
inability to be aware of what was happening must be that the grievors were
asleep during all of this.
The evidence of the two security guards is also consistent with the
conclusion that the grievors must have been asleep. Mr. Ward's evidence is
credible when he explained that he closed the door in an effort to awaken the
Corrections Officers and keep the situation out of the sight of the public. This
evidence is significant in two ways. First, both grievors admit that they have no
knowledge of when, why or how the door was closed, or even when it became
open again. This leads to the inevitable conclusion that they were not conscious
when the door was closed or re-opened. Secondly, Mr. Ward's decision to close
the door without waking them up is very odd. However, the oddness of his
actions and his admission of such an inadequate response lends credibility to his
testimony. Further, one has to wonder why the grievors did not respond to
Warren Sugars when he told them that the nurses had been complaining about
the fact that they appeared to be asleep. One would expect Corrections Officers
in the position of the grievors to immediately protest their innocence if they had
indeed been awake. They certainly would want to correct any misperceptions
without delay. Given that Officer Gregoire says that he believed that the
Employer was looking for an excuse to fire him, his silence speaks volumes.
Finally, it must be recalled that Mr. Sugars initially reported to Lieutenant
Houghton that the grievors "seemed tired" and that it was warm in the room. This
was soon after the event and is consistent with the notion that the grievors had
only recently become awake after Mr. Ward had closed the door loud enough to
stir them into consciousness. It is noted that Mr. Sugar's testimony at this
hearing was that the grievors were alert when he entered the eye room, and that
this reveals an inconsistency in the Employer's case. However, Mr. Sugar's
initial story is consistent with all the rest of the Employer's case, and he
51
confirmed the truth and accuracy of that Report in his testimony. Therefore, Mr.
Sugar's initial impression of the grievors is significant because it is consistent
with the finding that they had just awakened.
It is possible that Jerry Peddle may honestly believe that he was
awake all during the escort. However, he admits that he has no knowledge of
some of the people who came in the room or the doorway, and he has no
recollection of one security guard shutting the door. Officer Peddle is someone
who appears to take his job very seriously. However, he conceded that his
actions on that day could be described as "remarkably in-alert". If he was awake
and alert as required, he would have been aware of the events in the room.
Instead, contrary to his training, he failed to remain alert and responsive to
anyone coming into the room. The only way Officer Peddle could have failed to
observe all the happenings on that day is if he were actually asleep.
There is no doubt that Daniel Gregoire fell asleep. He positioned
himself as comfortably as could be possible in the chair immediately adjacent to
the door. He admits to stretching out his legs, putting his chin down, and being
completely unaware of all the people who came right into the doorframe or into
the room. He has also exhibited a sustained effort to try to avoid this allegation.
He made it clear that he believed that his Union activities made him a target for
management. He was fully aware that an allegation of him sleeping during an
escort would give management ammunition against him. It is clear from the
evidence of Warren Sugars that Daniel Gregoire knew, during the escort, that the
nurses had been complaining about him appearing to be asleep. He knew that
such an allegation could have serious repercussions. This created an unusual
and dangerous situation for him with regard to his employment. It is
understandable why his initial lack of recall about the escort may have resulted in
him saying that nothing unusual happened when he was first asked about his
activities that day. However, during the interview with Lieutenant Houghton,
Officer Gregoire displayed a selective memory by recounting that Warren Sugars
had mentioned concern about the inmate wearing leg shackles, yet Officer
52
Gregoire did not mention Mr. Sugars relating the nurses' complaints about the
appearance of being asleep. This selective memory suggests that there may
have been a sense of guilt about the situation and an attempt to conceal the
misconduct.
The final reason why it has been concluded that the grievors were
asleep concerns the evidence about the inmate who was being escorted. It is
possible to accept the Union's submissions and discount a great deal of the
evidence of the inmate himself because there were some serious credibility
problems with regard to Inmate A. As mentioned above, much of his evidence is
completely contradicted by all the other evidence. However, not all of his
evidence must be discounted. Some of his evidence is consistent with the
evidence of the nurses and the security guards. One telling and interesting point
comes from the evidence of Ms. Laurin, Ms. Graham and Mr. Ward who all
independently mentioned that when they looked in the room and made eye
contact with Inmate A, he smirked and/or shrugged his shoulders in response to
them observing the two sleeping Corrections Officers. Inmate A mentioned these
interactions in his testimony. There was an order excluding witnesses, so no one
could have heard another speak about this "shrug" or "smirking" conduct. It is an
unusual use of body language, but it is only consistent with a scenario where the
inmate derives pleasure out of seeing his guards being caught In an
embarrassing situation. The grievors did not refute any of this evidence,
presumably because they were unaware of it all at the time. Again, this must be
because they were asleep.
Further, given the nature of Inmate A, the setting of the escort and
the Officers' training, one has to wonder how or why they would let themselves
appear to be asleep. It is clear that they are intelligent men who understood their
responsibilities. They had proven themselves in the past, and they both valued
their jobs. However, the answer to how this situation developed may have come
from the unchallenged evidence of Inmate A himself. Both the inmate and Officer
Gregoire recalled that they had a conversation at the outset of the escort wherein
53
Inmate A gave an assurance that there would be "no trouble" because he had
only a few weeks to go on his sentence. He clearly understood from experience
that "trouble" could affect his release date. It is highly likely that this assurance
rang true because it was remembered by Officer Gregoire. However, this same
reassurance may have instilled a misplaced trust that lead to the grievers
relaxing their vigilance. When their complacency is added to a small warm room
and a long and boring wait, it is all too easy to imagine how simple it would be to
succumb to sleep in those circumstances.
Accordingly, there is overwhelming independent evidence that the
grievors must have been asleep for some period of time during the escort of
Inmate A. But even if I am wrong about that, the evidence clearly establishes that
they were completely unaware of the circumstances in the room during the
escort, of who came in or of what was happening around the room. If they were
not asleep, they were essentially or effectively unconscious. Therefore, it may not
really matter whether they were asleep or not. They were both unable to remain
alert or maintain security during the escort. It must be recalled that the escort
training materials speak of the importance of alertness and warn against allowing
a situation that results in an officer saying, "What the heck happened!" Taken at
its best, the grievors' evidence essentially amounts to just that: they do not know
"what the heck happened" in or around the room for a significant amount of time
during that escort. Further, they are trained to maintain "awareness" during an
escort by being "focused on [the] responsibilities and the task at hand" and
employing "tactical thinking". They are also taught that "attitude" is the most
essential component. They are told to "project a professional and confident
demeanor". Again, taking their evidence in the best light, it still must be found
that they completely failed to achieve any of this. Further, their Standing Orders
mandate: "Escorts must endeavour to position themselves where they can
maintain constant observation of the inmate and control any exits." No matter
how the evidence is viewed, the grievors completely failed to meet this standard.
54
Falling asleep in the context of this job is very serious. Under the
Employer's Rules of Conduct, this is considered a Category 2 infraction, which
could result in immediate dismissal. Such misconduct is ranked along with other
serious offences, such as sexual harassment, verbal or physical abuse and
neglect of duty. This categorization is, of course, not binding on an arbitrator. But
the characterization is consistent with the case law cited by the Employer that
upholds discharges for breaches of security in detention institutions.
Falling asleep during an escort or being completely unresponsive
and unaware of circumstances is certainly a breach of security. The facts cannot
be ignored. By the grievors' own admissions, they were inattentive and unaware
of who came in or near the room. Therefore, they were inattentive to anyone
coming or going. The risk created by this is too easy to imagine. It gave the
inmate an opportunity to receive assistance from anyone coming in the room.
Alternatively, the inmate, despite his restraints, was still capable of limited
movement. As he fantasized, he could have either slipped past the Corrections
Officers, overpowered one or both of them, apprehended the ASP baton or
pepper spray, and/or taken someone hostage. Further, the location of the eye
room gave the inmate an opportunity to make the situation even worse by
grabbing a surgical instrument to use as a weapon or apprehending drugs. There
is a reason why the protocol calls for two officers on a Hospital escort. The
reason is security. When one Corrections Officer fell asleep, a dangerous
situation was created. When both Corrections Officers were asleep, the inmate
was effectively left unguarded. It is bad enough when one pilot falls asleep. It is
a disaster if both fall asleep. Therefore, the grievors' dereliction of duty and/or
sleeping on the job, even if it was for a brief period, must be viewed in a very
serious light.
I am mindful of the cases cited by the Union that differentiate
between inadvertent sleeping and situations where employees deliberately set
out to hide away so that they can sleep while on duty: (see in particular The
Boy's Home and CoUPE., supra.) It is clear that the grievors' falling asleep here
55
was inadvertent. They may have made themselves as comfortable as possible,
but they certainly never intended to fall asleep. They simply allowed the situation
to develop. But this situation is more serious than if the sleeping had occurred in
a secured facility. In such a place, safeguards are in place; the inmates are in a
locked space, other trained staff is available, and there is hopefully no access to
weapons or drugs. The situation is much more threatening when it occurs in a
community hospital where all the necessary protections are not available. This
posed a significant risk to the public, the Hospital personnel, the inmate and
themselves. As such, it has destroyed the Employer's trust in their ability to
function in their positions.
This raises the question of whether there are any reasons to set
aside the dismissal. The first question to be addressed is whether the grievors
received procedural fairness in the conduct of the investigation. Procedural
fairness is critically important: see Air Canada and Canadian Automobile
Workers, Local 2213, supra, at p. 9:
Where the employer disciplines employees it IS
required to thoroughly investigate the whole situation
and to explore and weigh all the facts. Central to that
duty is a responsibility to discuss the matter with the
involved employee and to attempt to ascertain his or
her version of the events. In addition, the employer is
required to ascertain the true state of affairs from other
witnesses, if possible, before imposing discipline.
In the case at hand, it cannot be said that there were any problems with the
launch of the investigation. In fairness, CNCC had no choice after receiving the
complaint from the Hospital, and acted responsibly by ensuring that CNCC staff
was actually involved before perusing the matter further. However, the Union has
succeeded in uncovering inconsistencies and problems in Lieutenant Houghton's
Report. This Report was put forward as the basis for the Employer's decision to
terminate, and there are certainly several "problems" that were not recognized or
appreciated by CNCC management at the time. Some of the more significant
items that were revealed include:
56
1. Lieutenant Houghton did not ask the Hospital security guards if
they had completed an occurrence report for the Hospital and
therefore failed to consider the existing report that was
referenced in the nurse's original report. Mr. Ward's Security
Occurr~nce Report dated May 4th was in evidence at this
p
hearing but was not part of the Houghton Report.
2. The faxed Risk Management Occurrence Report from the nurse
that Lieutenant Houghton relied upon was not completely
consistent with the verbal accounts given by the security
guards. Specifically, the fax asserts that a security guard closed
the door "to wake up" the Corrections Officers, yet no security
guard told Lieutenant Houghton that he had awakened the
Officers.
3. Lieutenant Houghton failed to notice that the Hospital's Risk
Management Report reflected two different types of handwriting.
The fact that two people made entries was easily apparent on
the face of the document and was confirmed when they both
testified at this hearing and identified their individual entries.
The significance of this issue is not that there were two authors
because their respective contributions to the document were
properly explained. The point is that their different entries were
not appreciated at the time of the investigation and could have
been significant.
4. There were discrepancies between the two security guards'
accounts with regard to whether the door to the eye room was
closed or opened, or when the door was opened.
5. While the nurse who penned the major portion of the Hospital's
Risk Management Report wrote that one Corrections Officer
57
was snoring, none ol the people who were interviewed by
Lieutenant Houghton corroborated this.
6. Lieutenant Houghton did not ask the security guard who says he
saw the Corrections Officers asleep why he did not try to
immediately awaken them if there was a concern that there was
an unsecured inmate.
7. Lieutenant Houghton did not interview the nurses who were
working in ER on May 1 st or seek corroboration from the
Hospital regarding the initial complaint. However, the Report's
"Findings" list a nurse as one of those who provided "credible
statements regarding this matter." This gives a false impression
that the nurse was actually interviewed.
8. The Report indicates that both of the security officers observed
the grievors sleeping, whereas the transcripts of their interviews
reveals that Mr. Sugars found them awake when he came to
investigate.
Accordingly, it must be recognized that the Report contains unsupported
summaries of evidence and that there was a failure to interview all the potential
witnesses or clarify apparent difficulties with the evidence that was available. The
evidence also shows that the grievors were not told the substance of the
allegations against them until they were in the midst of the critical interviews into
the events. All these are troubling issues. However, the sad fact is that if the
investigation had been more thorough and delved into all the issues explored in
this hearing, or if it had answered all the questions raised by the Union, the
investigation would have yielded a much stronger case against the grievors than
the one set out in the Houghton Report. All the queries raised by the Union with
regard to the Houghton Report were explored in detail in the numerous days of
this hearing. That meticulous exploration yielded flaws in the Houghton Report,
58
but also a convincing case against the grievors. An employer is required to do a
thorough investigation. However, an employer is not required to thoroughly
interview every conceivable witness before a decision is made. The Employer
must simply do a fair investigation into misconduct and have sufficient
information to base a rational justification for the decision to discharge. Despite
its flaws, the Houghton Report did layout the summaries of the interviews and
the substance of the allegations. The Report would not withstand the scrutiny of
a perceptive cross-examination. But the Report does contain enough substance
to rationalize the decision to discharge, and was not so fundamentally flawed that
it could not be relied upon by the Employer at the time.
There is some substance to the Union's concern about the fact that
the grievors were not told the nature of the allegations against them until well into
the investigatory process. On the other hand, there is no obligation for an
Employer to "tip its hand" when asking for initial information from the grievors.
Therefore, I draw no negative inference from the fact that the Occurrence
Reports filed by the grievors initially made no mention of any unusual
circumstances during the escort. However, prior to being interviewed, some of
the identifying details of the escort were made known to the grievors in terms of
the time, the inmate, and the location of the escort. Presumably, this helped to
trigger their memory of the actual event. Then, during the interview, the exact
allegations against them were made clear. They were asked whether they fell
asleep, and they were asked whether they could have been perceived to have
fallen asleep. The evidence is clear that Warren Sugars had told them about the
nurses' complaints on May 1 st. It defies credibility to accept that they did not then
recall having received the complaint during the escort or know the nature of the
allegation that they was facing. Therefore, it must be concluded that the grievors
were given adequate opportunity to explain themselves during the investigation,
given adequate knowledge of the allegations against them, and were accorded
overall procedural fairness.
59
Therefore, on its face, the Houghton Report sets out reasonable
grounds upon which the Employer could conclude that discharge was
appropriate. The evidence at this hearing also establishes such misconduct. The
question now becomes whether any evidence supports the Union's contention
that the decision to discharge was tainted by an employer's anti-union animus or
that it was motivated in reprisal against Dan Gregoire. There is a great deal of
evidence that leads the Union to asset this serious allegation. However, a
consideration of the evidence as a whole leads to the conclusion that it cannot be
sustained.
It must be recognized that there are some unsettling details in this
case. For example, Deputy Clough was the .decision-maker, and his evidence is
relied upon by the Employer to justify the dismissal. However, as a witness,
Deputy Clough had a troubling practice of recalling some items in detail, while
claiming an inability to recall anything that cast the Corporation in a negative
light. For example, when he was confronted with his negative comments about
Officer Gregoire or his Union activities, Deputy Clough simply said that he could
not recall saying such things. To his credit, he did not deny them, and most, if not
all, of those statements were ultimately established through witnesses. He would
have been a much more credible witness if he had simply accepted that the
statements were made and then had explained their meaning or their context.
Further, it is clear that Deputy Clough was not accurate when he set out all the
reasons for deciding upon the termination. He testified that he had taken into
consideration the grievors' backgrounds and records of employment. He
described both of the grievors as having "satisfactory records", and indicated that
neither had any training or work experience invested in security or law
enforcement as a career. This is simply not accurate. Both grievors had "above
average" job performance appraisals. Deputy Clough failed to note the
commendations on both grievors' records. Deputy Clough also failed to note that
Officer Peddle had specific training prior to being hired, had ICIT training, and
was being used as a Use of Force Instructor at the facility. All this leads to the
conclusion that Deputy Clough failed to properly assess the grievors' records,
60
failed to investigate the records, andlor that he gave inaccurate testimony. None
of these conclusions is satisfactory.
The evidence also establishes that Deputy Clough did make the
comment to Daniel Gregoire: "If crossed, I can be the meanest some [sic] bitch."
This statement was made in the Joint Occupational Health and Safety meeting.
Taken alone this could be a very threatening comment. However, it must also be
recalled that the evidence shows that the statement was made right after Deputy
Clough explained that he came from a union background and wanted to establish
a good rapport with this Union. Subsequent events show that the statement can
be interpreted more as a "staking out of turf', rather than an actual threat. Words
are important and cannot be ignored. But actions often speak louder than words.
Events disclose that Deputy Clough was "crossed" often by Officer Gregoire
without there being any evidence of direct reprisal. Daniel Gregoire continued
unimpeded to file several complaints and grievances over a sustained period.
There is no question that Deputy Clough disagreed with Daniel Gregoire's tactics.
Deputy Clough spoke to other Union representatives and Officer Gregoire about
this. But the evidence does not show any repercussions or intimidation. Instead,
the evidence shows that Deputy Clough did continue to work with the Union and
Daniel Gregoire. A prime example of this is the implementation of the Union's
request for a new shift schedule, even after the bothersome overtime grievance
had been filed.
The Union also points to the fact that Deputy Clough told Tammy
McGregor that he would only deal with her on Union business, and not "her better
half', referring to Daniel Gregoire. It was said that this illustrates that Deputy
Clough would only deal with the Union on his own terms and that this is contrary
to the Labour Relations Act, s. 70. However, the Union's evidence fails to show
that Deputy Clough did refuse to deal with Daniel Gregoire. The evidence is to
the contrary. As mentioned above, the evidence revealed that Deputy Clough
continued to deal with Officer Gregoire on Union business as required.
Therefore, the statement has to be interpreted as being simply an inappropriate
61
and offensive remark. It reveals a preference for a different personality and
approach. It is not in itself an indication of anti-union animus or reprisal against
Daniel Gregoire personally.
The other serious allegation that the Union raises is the fact that the
facility's Administrator, Doug Thomson, said to Daniel Gregoire in 2003: "Don't
forget who signs your pay cheque", in the context of a Joint Occupational Health
and Safety meeting. Again, this is an unfortunate and inappropriate remark. And
it was said at a meeting where Officer Gregoire was advocating vigorously for
increased training and custom-made protective vests. The fact that it was
perceived as a threat is supported by Mr. Gregoire saying that very thing to the
Ministry of Labour official in the room at the time. However, four significant
factors take away the sting of this line. First, it was said in 2003, long before the
events giving rise to this grievance. Secondly, the meeting resulted in Mr.
Thomson authorizing the expenditures for exactly what Daniel Gregoire was
seeking. Third, Mr. Thomson was not the decision-maker on the discharge, and
there is no evidence to link this comment to the decision. Indeed, there is no
evidence that Mr. Clough was aware of it. Finally, and most importantly, the
statement was made in the presence of a Ministry of Labour official whose job it
is to enforce the Occupational Health and Safety legislation. That legislation
includes section 50(d) which dictates that no employer or person acting on behalf
of an employer shall "intimidate" an employee because s/he has sought the
enforcement of the Act. Had either the Union or the Ministry official considered
the statement to be a real threat or actual intimidation in violation of the Labour
Relations Act or Occupational Health and Safety Act, one would have expected
immediate action would have been taken with the Corporation or Mr. Thomson.
The evidence shows that Mr. Gregoire was vigilant in his assertion of statutory
employment rights. One cannot imagine him ignoring the opportunity of calling
the Ministry official as a witness against this Employer in a Section 50 complaint.
Yet no complaint was filed about this or any of the other incidents that the Union
relies on in this case. Instead, Officer Gregoire continued to fulfill his role on that
Committee and with the Union.
62
Therefore, it must be concluded that while the Union was able to
reveal several troubling comments, they must be taken as expressions of
management's frustrations and differences in attitude with Dan Gregoire, rather
than evidence of coercion or anti-union animus. Few employers agree with the
way that unions carry out their business. The fact that an employer initially greets
a grievance with scorn, anger and/or contempt is unfortunately all too common.
However, this does not always signal the kind of anti-union animus or reprisals
prohibited by the Labour Relations Act or the Occupational Health and Safety
Act. No employer solicits or welcomes grievances or complaints. Few employers
appreciate zealous union advocates. But such feelings do not inevitably lead to
reprisals or unlawful conduct. If each negative reaction to a grievance or
disagreement with a union official's style were equated to anti-union animus, the
arbitration and labour board proceedings would be jammed with those cases.
While it is clear that there is a pattern of conduct by the Employer
that shows frustration with Mr. Gregoire and his approach to his Union's
concerns, the question remains whether all these statements and situations
taken cumulatively lead to the conclusion that the discharge was tainted by
improper motive. The test that must be applied in weighing evidence such as this
is set out in the decision of The Barrie Examiner, [1975] OLRB Rep. October 745,
at paragraph 17: cited in the Mid/and (Town), supra, case:
... the appearance of a legitimate reason for
discharge does not exonerate the employer, if it can
be established that there also existed an illegitimate
reason for the employer's conduct.
This approach effectively prevents an anti-union
motive from masquerading as just cause. Given the
requirement that there be absolutely no anti-union
motive, the effect of the reversal of the onus of proof is
to require the employer to establish two fundamental
facts - first, that the reasons given for the discharge
are the only reasons and, second, that these reasons
are not tainted by any anti-union motive. Both
elements must be established on the balance of
63
probabilities in order for the employer to establish that
no violation of the Act has occurred.
It will be noted that the anti-union motivation need
not be the sale reason for the employer's decision. A
contravention is also established in cases of mixed
motives - some lawful, others unlawful.
Accordingly, the question in the case at hand becomes, given that the Employer
has established that there is a lawful motive to sustain the discharge, has the
Employer satisfied its onus of showing that this was the only reason for the
discharge and that the discharge was not tainted by any anti-union motive or
imposed as a reprisal. After a consideration of all the evidence, it must be
concluded that the Employer has satisfied its onus of proving that Officer
Gregoire's Union activities did not playa part in this decision to discharge. First
and foremost, it must be noted that the initial investigation was launched as a
result of an independent complaint. The Employer's reaction to that complaint
was to immediately try to ascertain whether the complaint related to its own
employees or whether it could have involved another security force. The
Employer was simply responding to an independent complaint; it was not
manufacturing a case against Officer Gregoire. Secondly, the allegations in
themselves are serious, and the response of discharge is consistent with both the
Employer's internal set of rules and the well-established case law in secured
facilities. Therefore, it cannot be said that the Employer's reaction to the
allegations was disproportionate or unusual. Further, while many statements by
management personnel reveal considerable annoyance and differences with
Officer Gregoire about his tactics and his approach to issues, taken in context,
the comments reveal no more than that. This is a new high security institution
where the Union and management were each asserting their respective authority
in ways that they felt the other would understand. But the evidence shows that
even when Officer Gregoire lead a work refusal in April 2003 and was warned
that there could be repercussions, none came. Further, many of the incidents
happened long before these events, and it is impossible to find a link or a causal
connection to the decision to discharge. Therefore, when all these statements are
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taken in context, they do not paint a picture of anti-union animus or a desire to
impose a reprisal on Officer Gregoire.
The only really difficult aspect of the Employer's case is the
differential treatment with respect to the execution of the actual termination. Why
did the Employer insist that Officer Gregoire attend on May 2151 to receive his
termination and yet allow Officer Peddle to work four more shifts? If the alleged
misconduct was so severe as to warrant discharge, why did the Employer allow
Officer Peddle to continue working? The Union suggests that the only answer to
these questions is that the Employer could not wait to rid itself of the Union
activist, Dan Gregoire. However, the paperwork authorizing the discharges
reveals that the initial plan was to implement the discharges on the same day.
The explanation offered for the fact that the meetings were allowed to proceed on
different days is that different management officials made the calls to the grievors
and that they responded differently. Both were off duty and neither was told the
purpose of the meeting, other than that it related to the ongoing investigation.
Lieutenant Houghton was the one who called Daniel Gregoire and insisted that
the meeting occur that day, on May 2151. Officer Gregoire asked for a
postponement to arrange for a specific Union representative, but complied with
the summons to attend when another representative was located. In contrast,
the director of Human Resources called Jerry Peddle, who responded by saying
that it would be "inconvenient" to meet that day. He was then allowed to attend
for a meeting four days later. This raises the question as to whether this reflects a
sinister differential in treatment or, instead, bureaucratic bungling. If only Dan
Gregoire had been discharged, anti-union animus would be the only inference
that could be drawn. However, the evidence is clear that as of May 181h, Deputy
Clough had made the determination that both grievors had to be discharged. He
treated them both in the same way, not because of their backgrounds, but
because of the nature and the seriousness of the misconduct that had been
established against them. Thereafter, Deputy Clough set in place the paperwork
which was designed to affect both the discharges on May 21 st. It is clear that
when Officer Peddle did report to work for his shift on May 22nd, the consistent
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reaction of his supervisors was wonderment that he was still employed. This
suggests that they had understood that he had been terminated along with
Officer Gregoire on May 21 st. This is consistent again with the notion that the two
Officers were meant to be terminated on the same day. Lack of coordination and
different messengers resulted in different actual termination meetings. While the
evidence does raise some serious concerns about differential treatment, the
totality of the evidence presents a convincing picture that the corporate intent
was to treat both grievors similarly. Further, the evidence establishes that Officer
Peddle was a valued employee with good prospects of a future at the facility. If
the Union's theory of anti-union animus is accepted, one would have to conclude
that the Employer terminated Officer Peddle simply because it wanted to get rid
of Officer Gregoire. This theory simply does not make sense.
Finally, while the Union did present evidence of comments and
incidents in 2002 and 2003 regarding other managerial reactions to Dan
Gregoire's union activities, none of those incidents were connected to Phil
Clough. Clough was the effective decision-maker. He may have had a different
style than Daniel Gregoire, but the evidence shows that he was respectful of the
role of the Union, and he dealt with health and safety concerns that were raised.
He arrived in February 2004 with a mandate to effect positive change. Whether
that has occurred or not is outside of the realm of inquiry in this case. But the
evidence is that he respects the role of a union in a facility like this and he was
given the mandate to bring a new approach to labour-management relations.
There is no evidence that he was affected or influenced by events that happened
before he came to the facility in February of 2004.
At the end of the day, I am left with the conclusion that the two
grievors fell asleep and/or were completely inattentive during the escort of a
violent career criminal in a community Hospital. This amounts to serious
misconduct. It created an opportunity for the inmate to pose serious harm to the
Corrections Officers and to the public. This calls for serious discipline. In the
context of the specific duties of a Corrections Officer, their responsibilities to the
;
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public and each other, and the fact that this occurred in the community, discharge
is not unwarranted. Further, their failure to monitor each other, or to prevent each
other from succumbing to sleep, made the situation even worse. Two guards are
assigned to assist each other. When both fail in their duties, all public security
and protection is lost. The Employer is entitled to treat this matter seriously given
its obligation to the community, the Hospital and the terms of the Services
Agreement. While Dan Gregoire was an active and effective Union and Health
and Safety advocate, and while efforts may have annoyed and dismayed
management at times, the evidence shows that he was discharged simply
because of his misconduct on May 1, 2004, while on escort duty. He was not
discharged because of his other Union-related activities.
The gnevors are short-term employees. Other than the
inadvertence of their misconduct, there was no evidence presented of mitigating
factors. It is noted that a discharge has a devastating financial impact on an
individual and his family. This is always significant and has been taken into
consideration in a general sense. However, there is no specific evidence of
circumstances in this case. Further, while it is clear that the grievors have
learned the importance of staying alert during an escort, there was no evidence
from them that signaled that they have come to appreciate the seriousness of the
situation they created.
Both grievors presented themselves as intelligent men, capable of
leadership and achievement. However, the magnitude of the clear and
convincing evidence presented against them by independent witnesses has
established that there was just cause for dismissal and that no improper
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considerations were a factor in that decision. As a result, the submissions
regarding defamation are moot and shall not be addressed.
Accordingly, the grievances are dismissed.
DATED at TORONTO this 20th day of March, 2006.